OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, January 11, 1995

OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, January 11, 1995




Wednesday, January 11, 1995

Department of Labor

Washington, D.C.

The above-entitled matter came on for hearing, pursuant to notice, at 9:50 a.m.


Administrative Law Judge



Holcomb Environmental Services
Larry Holcomb 10717


Ms. Sherman 10741
Mr. Haviland 10839
Mr. McNeely 10857
Mr. Gross 10866

San Francisco Hotel Association
Glen Galfond
Jay Tansing


Ms. Sherman 10874
Ms. Collia 10902
Mr. Sandman 10908
Mr. Rupp 10946



217 10740 10740

218 10871 10871

219 10871 10871

220 10874 10874

9:50 a.m.

JUDGE VITTONE: On the record.

I'm going to take Mr. Holcomb, because I held him over from yesterday. As I understand it, he's got to get out of town today, too.

Is there anything else I've got to take up before we get started here?

You're Mr. Galfond?


Just a scheduling issue, something we've been talking about. I was under the understanding, I was told yesterday I was first up today. Now things change, I understand that. I just want to fix a time, because I can't stay here all day. I could do it, say at 3:30, if we could pick a time. But there may be scheduling conflicts because I made some other arrangements.

JUDGE VITTONE: Mr. Holcomb has got about a 35 minute presentation.

How long is your...

MS. SHERMAN: Your Honor, the problem, as I understand it, is this. Mr. Galfond has a meeting at 2:00. I don't think there will be time after Mr. Holcomb to have Mr. Galfond come on and present everything by 2:00. So I think what he's asking is, he can be back here at 3:30. I think it's safe to say that we will be long finished with Mr. Holcomb by then. So if you don't have any objection, I wouldn't have any objection to this arrangement, in the interest of staying on schedule.

JUDGE VITTONE: Anybody have any problem coming back at 3:30 if we finish up with Mr. Holcomb? I would hope we'd finish up with Mr. Holcomb well before 3:30.

Mr. Rupp?

MR. RUPP: How much time does Ms. Sherman have for Price Waterhouse?

MS. SHERMAN: I'd say about an hour, perhaps a little bit more.

JUDGE VITTONE: As I understand it, they've already given their direct presentation, as I recall, you're just here for examination.

MR. GALFOND: Correct.

MS. SHERMAN: That is correct.

JUDGE VITTONE: Who else has questions for Mr. Galfond.

Mr. McNeely. How long?

MR. McNEELY: Between 30 and 45 minutes.

JUDGE VITTONE: I saw two hands...

MR. McNEELY: It was the same, a team.

JUDGE VITTONE: But total about 30 minutes or so.

Mr. Rupp?

MR. RUPP: Ten or 15.

JUDGE VITTONE: Anybody else?

MR. GALFOND: If it would help, I could probably push it up to 3:15 or something like that.

JUDGE VITTONE: Let's make it 3:30.

MR. GALFOND: Thank you.

JUDGE VITTONE: Be back at 3:30.

Mr. Holcomb, why don't you come on down.

Was there something else? Mr. Andrade.

MR. ANDRADE: Another scheduling matter, Your Honor. As I discussed with you a few minutes ago, Dr. Clayton is not feeling well and will not be here to testify tomorrow.

JUDGE VITTONE: Dr. Clayton, as I understand it, he had pneumonia?

MR. ANDRADE: He had pneumonia over Christmas, and we were hoping that he'd be up to, but we met with him, and he isn't up to testifying tomorrow. I apologize for the short notice, but it's one of those situations.

JUDGE VITTONE: Do you want to reschedule him?

MR. ANDRADE: The doctors have said it would take about six to eight weeks as the normal period of recovery. We could keep that as an option, but I'm not sure that it's going to work out that he'll be able to do it at any time within the confines of the remainder of the hearing. I understand, with the schedule, we might finish up sometime the third week in February or the second week in February, depending on how things go. So I don't want to ask to have him rescheduled only to find out that his recuperative period is longer than anticipated, and that he can't appear. Then we'll be in the same position of him having to cancel.

If you want to keep that open as an option, we'll be glad to do that as well, but we won't necessarily be requesting to be rescheduled, understanding that he may not be up to physically.

JUDGE VITTONE: Okay. He's the older gentleman I saw?

MR. ANDRADE: He's 70 years old, Your Honor.

JUDGE VITTONE: That's tomorrow.

I've also just received another letter from ICF Kaiser asking that they be scheduled for the week of January 23rd. Dr. Greenfield, I guess it is.

MS. SHERMAN: I believe, Your Honor, that we've already rescheduled them to appear first on Monday, the 23rd of January.

JUDGE VITTONE: So that's been taken care of.


JUDGE VITTONE: So he's out.

That leaves tomorrow with only Mr. Newell, Consultants in Toxicology?

VOICE: (Inaudible comment)


MS. SHERMAN: No, Mr. Gillam apparently is going to appear on the 13th. They called in and said that.

JUDGE VITTONE: What about the Steelworkers?

MS. KAPLAN: They're appearing on Friday, the 20th.

MS. SHERMAN: My understanding is the Steelworkers will appear on Friday, January 20th. I believe we put a new schedule out front and gave one to you yesterday afternoon.


Then everybody understands we go through Mr. Holcomb today, this morning, and whatever the break is, we will be back at 3:30 for Mr. Galfond from Price Waterhouse.

Mr. Holcomb, would you state your full name please, and the name of your organization?

DR. HOLCOMB: Good morning, Judge, OSHA staff. My name is Larry C. Holcomb. I am a Vice President at Holcomb Environmental Services at 17375 Garfield Road, Olivet, Michigan.

JUDGE VITTONE: You have overhead slides and...

DR. HOLCOMB: I have clear transparencies, and Mr. Hall said he'd be glad to do that for me.

JUDGE VITTONE: Let me get out of your way, and you can begin.

DR. HOLCOMB: I want to be very clear that I was invited by the Tobacco Institute to review the OSHA proposal for rulemaking, and that I have submitted comments in August. I submitted an additional list of all of the references that I used at a later date. And I have given the staff a copy of what my main comments will be today, including a set of the overhead clear transparencies that I intend to use.

My background, I have a PhD in Zoology from Michigan State University in 1963. That entailed advanced coursed in human physiology, mammalian physiology, biochemistry, and chemistry, and a lot of work in embryology and histology and anatomy. I have taught in universities largely to pre-medical and pre-dental students for 11 years, succeeding my stay at Michigan State in the largely pre-medical and dental students in the area of embryology and histology, physiology, comparative anatomy, and I completed research at that same time.

My PhD thesis was on reproductive physiology in mink where we looked at the effects of doses of progesterone, on reproductive impact of various doses of progesterone.

I worked for three years for the United Nations in East Africa, and then I came back to my home state, Michigan. I worked for the Michigan Department of Natural Resources in the area of waste management, and looking at the various risks or lack thereof, from a variety of resource management of waste -- both hazardous and solid waste.

I then worked for the Michigan Toxic Substance Control Commission for five and a half years, and directed the staff there, and looked at every possible potential toxic substance problem one can imagine from the PBB, the polybromated biphenyl incident in cattle there, to workers on assembly lines, to indoor air quality and the whole gamut. In that role we did on a daily basis risk assessment or lack thereof, due to exposure.

Following that in 1986, and since then, we have our own consulting company. There are six of us. It's a small company operating in a rural area of Michigan, and we do exactly the same kinds of work as I did when I worked for the state. That is largely interpretation of toxicological data and exposure data from air, water, soil, whether it's dermal exposure, inhalation exposure, or ingestion exposure, including foodstuffs.

That gives you, I believe, a general background for me, and up to date.

What I'd like to do today is to review with you largely the information with regard to exposure, either the lack of information that I see in the OSHA document, the proposed rules, or some suggestions about what the literature shows.

What I'm going to present is that first of all, OSHA has failed to substantiate its claim about the risk to human health presented by environmental tobacco smoke, in terms of relating exposure to symptoms or disease.

Secondly, I believe that OSHA's assumptions about workplace exposures and dose levels of ETS are not valid. Dose-related information will show that workers exposed to ETS receive insignificant concentrations. Other sources of the same materials contribute much larger exposures.

Thirdly, I believe that OSHA has chosen an inappropriate mitigation strategy for ETS. I will demonstrate that ventilation meeting ASHRAE Standard 62-1989 will reduce significant exposure of workers to ETS and indeed to all other sources.

(Slide No. 1)

I was a bit surprised when I read the OSHA proposed Preamble and suggested rules, because I had submitted voluminous information with regard to exposure in areas where there was smoking compared to areas where there was no smoking. Subsequent to that submittal, however, I published in 1993 in Environment International, a review of all of the indoor air quality data published in North America since 1980. So it entailed about 41 different studies, and includes a lot of information other than what OSHA has looked at.

I'm going to concentrate first on indoor air quality and ETS concentration and exposure as I outlined in that area.

(Slide No. 2)

I would like to first concentrate on the concept of dose, which is, to me, the overlying issue here. OSHA has used this concept in assessing risk, in development of permissible exposure levels with regard to rulemaking on other substances, but has failed to do so for ETS.

If you look at dosimetric calculations, and this is the way I want to look at it. I've looked at some of the previous testimony and I have no argument with how people assess dose, but I'm going to take the concentration of the respirable particulates, for instance, in indoor air, and give you the mean difference in smoking and non-smoking areas.

You might legitimately say how can you do that? I don't think I could do that if I had just a handful of studies, but I've got 41 studies. All of the data subsequent to that that I have given you in my earlier submittal, papers even beyond my 1993 paper, show the same sort of thing.

Furthermore, you need to know the duration of exposure, what's the time allocation in various areas where one might be exposed. Thirdly, the respiration rate.

We used light work or resting. You could use more active ventilation rates if you wanted to in terms of respiratory volumes. And for percent of retention, I used all of the data that was available to that time, both papers by Hiller, which indicated an 11 percent retention. So I'm taking exposure beyond just concentration of the air and breathing it in. I'm taking it to the point where you either retain it or you breathe it back out.

The dose then, that I've calculated, is the concentration times the duration, times the respiration rate, times the percent retention.

(Slide No. 3)

Interestingly enough, I looked at some of the earlier CAP study material from California in terms of time allocation in my 1993 paper, but in addition, several other sources that showed time allocation of various environments. What this slide does is show you where people spend their time. This is the entire population, not just the workplace population. But generally, you can see that home awake and home asleep certainly make up the majority of the time. If you're going to be exposed, if you are exposed to ETS in the home, you're exposed a whole lot more in terms of duration of time than you are anyplace else.

In terms of overall work exposures, males only have around 20 percent of their time at work, and females less than that, close to 12 percent.

There are other places that were exposed, sometimes in travel, sometimes in bars or bar-like atmospheres. I'm not claiming here that the average time that people spend in bars is 3.8 percent. What I am claiming, that if you include bowling alleys, discotheques, bars, and those like atmosphere where smoking density may be heavier, that that is the amount of time I would allocate to that.

(Slide No. 4)

From the data summarized in the 1993 paper, if you look at the mean difference in micrograms per cubic meter on the left column, going from zero to 120 micrograms per cubic meter of respirable particulates, these are respirable particulates less than or equal to five microns in diameter. Remember that ETS represents those mostly in the area of less, far less, than one micron in diameter.

In homes, the mean difference between non-smoking and smoking homes is 27.2 micrograms per cubic meter. For offices and public places, about 22. So there's a slight difference. A little edge. More in the home, and concentration, than in office places.

In restaurants, it's slightly higher. In bars and taverns, as you would expect, it's even higher. There's very little data for transportation. A little bit of data for trains.

Remember, this does not necessarily mean that all of the difference in respirable particulates here is due to ETS. I think if one has a lot of data and has reviewed a low, that you're fairly close, and I think I'm fairly close here.

If you look at the ultraviolet particulate matter data or the salanisol data or the FPM data that is more tobacco-specific, they jive very well. They're very closely correlated with these kinds of numbers.

I'd like to now turn to adverse effects. OSHA asserts that cardiovascular disease, pulmonary effects, cancer effects, genotoxic and reproductive disorders result from exposure to ETS and they set forth exhibits in their document as evidence.

As I will demonstrate, the exhibits used by OSHA have no evidence demonstrating adverse effects from ETS exposure.

(Slide No. 5)

I'd like to deal briefly... I submitted earlier much more detailed information...

Trying to put this in perspective a bit in terms of the respirable particulates in the terms of retained dose, without going to a lot of explanation, let me say this. The worst case example is a workplace... A worst case male, that's the fifth one down, where the dose would be about 108 micrograms per day. The dose per year almost 40 in terms of milligrams per years. And cigarette equivalents per year, a little less than four.

Now do I take a lot of stock in cigarette equivalents? Not necessarily. I think it's a mechanism to give some indication of the amount of respirable particulate that a non-smoker would take in and retain compared to a direct cigarette smoker. This assumes that the direct cigarette smoker retains around 10.6 milligrams per cigarette. So you can see that at any rate the doses, regardless if our retention is ten percent or 20 percent or 30 percent, it's going to make very little different. You already have the data to show it was around 11 percent, and if you use that, the doses are very, very small and insignificant in terms of potential health impact.

(Slide No. 6)

There were several cardiovascular effects claimed by OSHA and I've reviewed that data. I've reviewed the papers. This is just a summary of that information.

There were 18 exhibits where the exposure levels were 15 to 1,000 parts per million carbon monoxide, generally greater than 30 parts per million, with a carboxyhemoglobin level ranging between .4 and 15 percent, seven of those studies. Real life exposures, as I have documented very well and others have too, are around one to six parts per million. The OSHA permissible exposure level is 50 parts per million.

These exposure levels to animals or to people have no resemblance to real life exposures. In three of the exhibits that OSHA used, benzo(a)pyrene, B(a)P or benzo(a)pyrene or dimethylbenzanthrazene, DMBA. The doses given to the animals were 2.4 to 2400 milligrams per kilogram. Not micrograms, not nannograms. This is in milligrams per kilogram. Real life levels of exposure in air are around 0.7 nannograms per cubic meter in smoking areas. The OSHA permissible exposure level is 0.2 milligrams, not nannograms or micrograms. 0.2 milligrams per cubic meter.

There were two exhibits that had nicotine exposure levels of 30 to 1103 micrograms per cubic meter when in fact the exposure levels in offices and public places are around six micrograms per cubic meter and the OSHA PEL is 500.

There were two exhibits that showed that the respirable particulate level associated with experiments on cardiovascular disease were 4,000 to 60,000 micrograms per cubic meter, when in fact real life concentration levels of ETS-derived respirable particulates range probably somewhere between 20 and 30 micrograms per cubic meter, or less.

Let me have the next slide, please, with regard to pulmonary effects.

(Slide No. 7)

There were several pulmonary effects claimed by OSHA, and I've summarized the information that I submitted in my full documentation. The exhibits are noted there, where no exposure assessment was given. We don't know whether it was direct smoking-like activity, we don't know what the concentrations were. There were no cotinine, no nicotine measurements.

In additional exhibits, it was very evident from the data that was in the papers that it was either at direct smoking levels or very concentrated sidestream smoke. No resemblance to reality.

In a couple more exhibits, the carbon monoxide levels were between 15 and 4100 parts per million. People would die at that level. Animals would die at that level, at 4100 parts per million. No resemblance to reality.

In three more exhibits, the carboxyhemoglobin levels were 9.4 to 28 percent. If you look at ETS-exposed persons, about the highest carboxyhemoglobin level increase you could get would be about 0.1 percent. These have no resemblance at all to real life situations.

I'd like Overhead eight, please.

(Slide No. 8.)

I'd like to now deal with cancer effects claimed by OSHA.

This is a summary of information that I submitted earlier that shows exhibits where there was highly concentrated smoke, either direct smoking-like activity to the animals or people, or very concentrated sidestream.

In three additional exhibits there were lung implants of concentrated smoke tars.

As an environmental toxicologist, I can tel you that this has no resemblance to reality. If you concentrate anything that has any good potential for being toxic and implant it on the tissue, you're going to cause an adverse reaction -- no matter what it is. If it's potentially hazardous at a high concentration, you're going to cause an adverse reaction. So that has no resemblance to reality in terms of causing a cancer effect.

There were two additional exhibits by Coggins & Associates that became, were the only exhibits that came close to reality where they exposed rats to 100 micrograms or 1,000 or 10,000 micrograms per cubic meter of respirable particulates. I believe they came to the conclusion that 10,000 micrograms would be a no observable effect level, or adverse effect level. And certainly no effect at all at 1,000 micrograms per cubic meter. Even the lowest dose level that they used is some five to ten times higher than the normal concentrations one would have in indoor air.

What I'm surprised at, more than anything else, is that one of the best studies, best couple of studies that were submitted to OSHA and OSHA used, were downgraded or somewhat, even chastised by OSHA, as perhaps being something that they couldn't really count on.

None of the exhibits used by OSHA for cardiovascular or pulmonary or cancer effects is evidence of exposure to ETS conditions except for the Coggins studies on rats. In these examples, there were no adverse effects.

OSHA reports that exposure to materials such as benzo(a)pyrene and nitrosamines from ETS will lead to the adverse impacts they purport to occur as a result of such exposure. However, doses of these materials from other sources are much higher, much, much higher, than from ETS exposure.

If I could have Overhead nine, please.

(Slide No. 9)

This clear transparency will show you a summary of data that I submitted in my August 1993 submission.

If you will look at the data and find 0.7 nannograms per cubic meter of benzo(a)pyrene in indoor air perhaps as a result of ETS exposure, the weekly dose would be about 8.8 nannograms per week from food. From EPA databases and FDA databases, you can easily define 860 nannograms per week from food alone. From drinking water, from fresh vegetables, highly variable, but up to close to 40,000 nannograms per week if you're at the high end. From charbroiled meat, certainly, a good opportunity for heavy doses, and from ambient air, especially in urban air, you're submitted to a lot of possible doses.

It appears no matter how liberal or conservative we want to be, that less than one percent of benzo(a)pyrene exposure could possibly be due to ETS exposure.

Could I have Overhead ten, please?

(Slide No. 10)

I'd like to now look at the nitrosamine data. There is not a lot of nitrosamine data. Nitrosamines are not easily measured in indoor air because they are so minuscule in terms of concentration. But if you look at the NDMA nitrosamine, the nitrosodimethylamine, dose from ETS and other sources, the only information we have suggests that there may be 20 to 30 nannograms per cubic meter in a very smoky environment. The weekly dose, you have on the right hand column, you can get it from tap water, distilled water. If you're a beer drinker you can get a whole lot of NDMA.

I'm not suggesting to you that you stop drinking beer or alcoholic beverages, because even those doses are very low. But what I am showing you is that foodstuffs and beer, interiors of new cars, urban air, fried fish, cured meats, cosmetics, and this is not an exhaustive list, give you exposures to NDMA, very large exposures compared to what you could possibly get from ETS exposures.

(Slide No. 11)

Then if you look at the other nitrosamine that there is any readily available information on, if you look at NDEA, you find the same thing.

MS. SHERMAN: This is Slide 11?

DR. HOLCOMB: This is Slide 11, yes. Slide 11 shows you the possible ETS concentrations, as low as zero to 30 nannograms per cubic meter. Again, only taken in very smoky environments. Not taken in an office or general workplace setting. You can see that tapwater or beer, interiors of new cars or fried foods will also produce these same kinds of materials.

If I could have that one off, and I'll go to number 12 and 13 in just a moment.

What it suggests to me is this. That for most persons certainly less than one percent, perhaps only 1/1000ths of one percent, but certainly less than one percent of the nitrosamines that one encounters in terms of exposure, could possibly be from ETS exposure.

Now I'd like to turn to environmental tobacco smoke and indoor air quality.

OSHA reports that indoor air quality is poor, resulting in adverse health impacts, especially when environmental tobacco smoke is present.

If I could have that next one, number 12, Overhead 12.

(Slide No. 12)

I've looked at all the North American indoor air quality concentration values since 1980. This is what we find. If you look at the concentration for respirable particulates, and this is in workplace environments -- offices and public places, you see the difference in smoking and non-smoking in micrograms per cubic meter, for respirable particulates. You see the OSHA permissible exposure level and you see the percent of the PEL in indoor air in smoking and non-smoking areas, right about one percent of the permissible exposure level.

If you look at carbon monoxide, the levels are nearly identical. In fact this data occurs very frequently throughout the literature. There is very little increase in carbon monoxide due to increased exposure in ambient indoor air.

Can you get an increase? Absolutely. But the data shows that day in and day out the concentrations are very low.

For nicotine, you can see the differences. They could be less than that, but around six micrograms per cubic meter in smoking environments, and compared to the PEL, it's very insignificant, around one percent of permissible exposure level.

For nitrogen dioxide, there's very little data available for smoking versus non-smoking environments. But at any rate, what it does show us is that the levels that we do encounter are rather low, unless there's a very unusual point source.

For formaldehyde, the same thing. Very, very little contribution of ETS to formaldehyde levels. And the smoking and non-smoking levels are very low. For benzo(a)pyrene, extremely low levels compared to the OSHA PEL, whether in smoking or non-smoking environments. And for sulfur dioxide, around 1.6 percent overall in indoor air.

If I could have the next slide, Overhead 13.

(Slide No. 13)

I'd like to now look at some of the organic chemicals like the volatile organic compounds. You can see there is not the database that we'd like to see in this area, but what is available shows us that for benzene and trichloroethylene and some of the other commonly found VOC's in indoor air, that the concentrations are very low compared to the OSHA PEL, always less than one percent. Usually, perhaps, around 1/100th to 1/1000th of one percent.

What these data demonstrate overall are that ETS contributes a very small percentage of the materials in indoor air. Furthermore, whether in smoking or non-smoking areas, the concentrations of measured substances are generally less than one percent of the OSHA permissible exposure levels. I know someone is going to ask me, do I hold a lot of faith in the OSHA permissible exposure levels? I do in this regard.

If these values that we were finding in indoor air were even close to the OSHA permissible exposure levels, I would begin to express some concern. They are not. They are not even close to the OSHA permissible exposure levels. Generally, less than one percent. And when they are more than one percent, they are materials that generally show a threshold level of effect. For instance, like carbon monoxide.

If I could have Slide 14, please.

(Slide No. 14)

I would like to give you just a little additional information. I know that some of this may have been brought to the attention of OSHA staff, but these are some of the more recent papers in the literature since I did my review, and I'd like to just bring them to your attention and discuss a bit what I think they mean.

These are additional recent papers concerning exposure to cigarettes in experimental situations. The Takenawa Report, looking at mutagenic effects in rats. Look at the exposure level -- 25,000 micrograms per cubic meter of concentrated sidestream. Not diluted, aged sidestream. Not environmental tobacco smoke. But concentrated, fresh sidestream.

Penn et al in their 1994 report with their arteriosclerotic plaque development in cockerels, not really an animal I'd want to use in studies with ETS, but even if you did, look at the levels. 2480 micrograms per cubic meter of sidestream smoke.

Witschi et al did some respiratory cell kinetic work in hamsters. Some of the lower values concentrated sidestream, though, at 1,000 micrograms per cubic meter. They don't know what... They got some small effects on cells there, they don't know what it means. But again, it's some 40 times higher, even then, that what we usually encounter in indoor air.

Sun et al looked at atherosclerosis in rabbits. Look at the sidestream smoke concentrations -- way beyond reality. Having nothing to do with reality.

Ji et al in 1994, respirable cell impacts in post-natal rabbits. Concentrated sidestream smokes at 1,000 micrograms per cubic meter. They reported very subtle, if any effect there. They don't know what it means. Again, it's a higher levels than you would expect.

Hockhertz et al looked at cell immune system in humans, using concentrated ETS, respirable particulates at nearly 2800 micrograms per cubic meter. Again, nothing at reality.

If I could have the next slide please, Overhead 15.

(Slide No. 15)

You have seen some of these before. The Heavner paper you may or may not have seen. It's one that's just coming out in Environment International, I believe, this month, in the first issue. It's VOC exposure in homes attributable to ETS exposure. What they found was that overall in smoking homes versus non-smoking homes, that the total VOC, about 5.5 percent of total VOC exposure was attributable to ETS. About 13.2 of the benzene, 12.6 of styrene. And as you can expect, from tobacco smoke you would expect a higher percentage of things like pyridines at 40.7 percent. But all of these levels were very, very low in small microgram per cubic meter levels, but it does show you the amount attributable to ETS.

In other words, there are a whole lot of other sources of these, and if they are of any problem at all, we ought to be looking at why they are there, ad what we may be able to do to control them, if indeed, they're a problem at those levels.

Phillips et al looked at general ETS exposures in humans. They looked at total solid particulates, but what they found was that the TSP was about 142 micrograms per cubic meter from all sources, and around four from ETS exposure, so very low exposures from ETS.

I understand that Dr. Hedge will, if he has not already, be appearing here before you, or submitted material. But one of his latest papers does show that there is no effect on carbon monoxide, as I would expect from the other studies I reviewed, in smoking areas or non-smoking areas of buildings. And that CO2 is not different, or formaldehyde. There were slight differences, just as I have reported, in respirable particulates or UVPM and in nicotine.

I would now like to turn specifically to ventilation. I am a member of ASHRAE. I serve on the particulate and particulate contaminant control committee in ASHRAE, and I have developed several seminars with regard to the exposure of two respirable particulates in indoor air, and the means of measurement of respirable particulates in indoor air and have chaired two sessions within the last year and a half at ASHRAE meetings.

Ventilation in buildings with outdoor air. Using ASHRAE Standard 62-1989 is known to decrease concentrations of all contaminants. Not just materials from ETS. OSHA should take advantage of this information and promote the use of the standard.

Holcomb and Pedely in 1991 compared the advantages of increasing ventilation versus banning smoking. Thirteen different substances common to indoor air were assessed, and the assumption was made that effects of these various materials would be additive in their adverse impact, even though we know that not all of them would be additive.
We took the conservative approach.

By increasing outdoor air ventilation from five to 20 cubic feet per minute per person, all materials were reduced by about 65 percent. Banning smoking only reduced the materials by about five percent. Sixty-five percent meeting ASHRAE standard, five percent banning smoking alone.

Let me have Overhead 16, if you will.

(Slide No. 16)

This figure in Overhead 16 is just a diagrammatic representation and it is part of our paper published in 1991.

On the left margin you have the percent of the OSHA, what we call benchmark level, which if you take all 13 of those different materials, including nitrogen dioxide and formaldehyde, respirable particulates, and nicotine and benzo(a)pyrene, that if you have the typical concentrations in indoor air, that you may exceed the benchmark if, indeed, all of those substances are additive in their adverse impact.

If you ban smoking, you'll decrease it just slightly -- in this case about five percent. And if you improve ventilation, giving 20 cfm per person of outdoor fresh air, that you will decrease all of the contaminants regardless of the source, by some 65 percent.

Holcomb and Seabrook in 1994 have also demonstrated that increased ventilation decreases concentration of total volatile organic compounds.

Mendel has recently demonstrated that sick building syndrome symptom decrease is associated with ventilation of 20 cfm per person and above. Below 20 cfm per person, he was getting an association with that kind of ventilation with sick building syndrome symptoms, but at 20 and above he was not getting them. He got a good association there.

If I could have the 17th Overhead, and I believe that's my last one.

(Slide No. 17)

There is not the kind of information that I would like to show you the direct effect of ventilation on decrease in concentration of materials in indoor air. Most of the time when they measure concentrations, they do not measure ventilation. That's a fault in a lot of the data. But where it is available, and here we have, I believe, the only TVOC concentration studies and the effects of ventilation.

As you go up in ventilation on the lower axis from zero to about 20 cfm per person, total VOCs drop in every case. You get a slight aberration there on the one study by Oldaker which is not at all unusual, but you can see a good decrease associated with increased ventilation and this is what I would expect.

All of the modeling data shows the same thing. We used modeling information from Waden & Schef. You could as easily have used the models created by Sparks and his associates in EPA, using mixing ratios and so forth in indoor air, and calculate these same types of numbers.

I'm going to summarize now.

I believe that I've demonstrated that OSHA has failed to demonstrate a relationship between exposure to ETS and human symptoms or disease. I believe I have demonstrated that workers are exposed to only very dilute concentrations of ETS, and that doses from workplace exposure are insignificant.

I also believe that I've demonstrated that implementation of the ASHRAE 62-1989 ventilation standard will reduce exposure to all compounds from all sources.

Thank you very much.

JUDGE VITTONE: Thank you, doctor.

The testimony and slides of Dr. Holcomb will be identified as Exhibit 217 for the record.

(The document referred to was marked for identification as Exhibit No. 217, and were received in evidence.

MS. SHERMAN: Your Honor?


MS. SHERMAN: Or maybe Dr. Holcomb. Could you check to make sure that Slide 12 is in there? In the copy you gave me, Slide 12 was a black page.

JUDGE VITTONE: Slide 12, I think, was in mine, which will be in the record.

DR. HOLCOMB: I can certainly give you another one.

JUDGE VITTONE: Yes, Slide 12 is there.

MS. SHERMAN: I saw it up on the screen. I just wanted to makes sure that int he exhibit it was in there.

JUDGE VITTONE: Can I ask you just one question on the slides?

What's the difference between Slide 10 and Slide 11?

DR. HOLCOMB: Slide 10 is the NDMA nitrosamine, and Slide 11 is NDEA.

JUDGE VITTONE: MA stands for what?

DR. HOLCOMB: NDMA is nitrosodimethylamine, and the NDEA, nitrosodiethylamine.


Ms. Sherman?


Dr. Holcomb, are you a professional engineer?

DR. HOLCOMB: No, I'm not.

MS. SHERMAN: Are you a certified industrial hygienist?


MS. SHERMAN: Do you belong to any professional societies dealing with toxicology?

DR. HOLCOMB: With what?

MS. SHERMAN: Toxicology.

DR. HOLCOMB: Yes, the Society for Exposure Analysis, the Society for Risk Analysis. I don't know really of one society I belong to other than ASHRAE that doesn't deal somehow with toxicology.

MS. SHERMAN: What would you say would be the leading professional society dealing with toxicology?

DR. HOLCOMB: I wouldn't be certain. There's the Clinical Society of Toxicology, there's the Society of Toxicology, Exposure Analysis Society, there are many.

MS. SHERMAN: But you don't really know what's considered the leading one?

DR. HOLCOMB: I don't consider any one of them the leading one.

MS. SHERMAN: Have you published any original research in peer review journals?

DR. HOLCOMB: In what journal?

MS. SHERMAN: Peer reviewed journals.


MS. SHERMAN: I don't believe I saw in your submissions any list of your original research. Could you submit it for us?


MS. SHERMAN: You're the owner of Holcomb Environmental Services?

DR. HOLCOMB: I'm one of the owners.

MS. SHERMAN: How many others...

DR. HOLCOMB: I have 40 percent ownership.

MS. SHERMAN: Is this a closely held corporation?

DR. HOLCOMB: It sure is. My wife holds 60 percent.

MS. SHERMAN: Well, I believe in that.


MS. SHERMAN: How long have you been in business?

DR. HOLCOMB: For eight years.

MS. SHERMAN: What kind of work do you do?

DR. HOLCOMB: We do a lot of work for a varied number of clients, but largely in the area of interpreting chemical information as it's found in various environments, whether it's in indoor air or outdoor air, or in soil or in water or in foods. We've worked for several large corporations, several small corporations. We do a good deal of work with municipalities, townships, counties, cities. We work for individuals at times. We do some indoor air quality investigations for homes or offices and we do some litigative work.

MS. SHERMAN: By litigative work you mean you provide expert witness in certain cases?


MS. SHERMAN: How much of your time do you devote to that?

DR. HOLCOMB: Not more than ten percent. I think it's less than that, but not more than ten percent.

MS. SHERMAN: How many of these indoor air investigations have you done?

DR. HOLCOMB: Since I'm the senior person on science, I see all of the studies, although I don't do all of them. I usually sit down with whoever is going to do them or we do them together. We do about one a month of new... Everything from one radon measurement for a home owner to a full blown study in an office building.

MS. SHERMAN: When I used the word "you" I sort of meant Holcomb Environmental Services.

When you used the word "you" I assumed that's the way you were answering.

DR. HOLCOMB: Yes, I was.

MS. SHERMAN: So Holcomb does about one indoor air quality investigation per month?


MS. SHERMAN: And this has gone on for the life of the company?


MS. SHERMAN: Would you say most of them have been in indoor workplaces?

DR. HOLCOMB: No, I would say most of them are in homes. Maybe 25 percent in indoor workplace. I haven't really analyzed that so it's difficult, but off the top of my head I would say about 25 percent in workplaces.

MS. SHERMAN: Of the indoor air quality investigations... Let me rephrase this.

What percentage of your work is devoted to indoor air quality investigations?

DR. HOLCOMB: I really couldn't tell you. I'd have to guess at it. Probably 20 percent.

MS. SHERMAN: Then I think what we're saying is, of the 20 percent of your time that you devote to indoor air quality, about a quarter of them are workplace investigations?


MS. SHERMAN: Have you ever had an occasion to characterize ETS exposures in any of your indoor air quality studies in workplaces?

DR. HOLCOMB: None other than qualitative in the sense of viewing where smoking was going on and making some recommendations. But making a few quantitative measurements at the same time of things like carbon monoxide, carbon dioxide, and other environmental measures within the building.

MS. SHERMAN: How many employees do you have with Holcomb Environmental Services?


MS. SHERMAN: Are these six professional employees?

DR. HOLCOMB: Only one is not... Well, it's hard to say with a professional. If you've got a degree in information management, communication systems, I guess that's a professional. So all six are.

MS. SHERMAN: What are the specialties of the people that you employ?

DR. HOLCOMB: The specialties are sociology, toxicology, general environmental science, biology and chemistry, biochemistry.

MS. SHERMAN: So you don't have an epidemiologist on staff?

DR. HOLCOMB: No, we do not. We have some sub-consultants that we from time to time use. Most of the engineering work that we run into is with regard to groundwater hydrogeology, and where we're evaluating exposures to groundwaters as a drinking source. So we have at least two or three people that we would sub-consult to.

MS. SHERMAN: As part of your preparation to testify, did you have occasion to review OSHA's entire proposal?


MS. SHERMAN: So you reviewed the parts of the proposal on indoor air quality?

DR. HOLCOMB: Yes, I did.

MS. SHERMAN: In your own experience, and by that I mean Holcomb Environmental, when you've done indoor air quality investigations of workplaces, have you found that many of the problems may be attributable to improper functioning of the HVAC system and improper maintenance?

DR. HOLCOMB: Absolutely. In fact that is commonly the case. Either the... I guess it's not unbelievable to me any more, but when you first start looking at these situations, it seems unbelievable that people shut off the outdoor damper all together in an effort to save money, perhaps years ago. They're only recirculating indoor air, or they're getting what inadvertently comes in through the windows or around the doors or when the doors open.

But yes. No changing of filters, and the list goes on and on.

MS. SHERMAN: Do you believe based on your own experience with these investigations that the problem is due primarily to perhaps a misguided desire to save money, or do you think it's due to ignorance?

DR. HOLCOMB: It's difficult to tell because you have so many people involved. Between owners and building managers, or an employer that rents a building or owns the building. It's difficult to tell. I think it's a mixture of both, that you're trying to save on energy or you may have never really run into a problem.

I think we have to realize that in most cases, the building is operated in a manner that there are no evident adverse impacts. If it is, it's something like a dusty atmosphere, and somebody says something about it, and maybe they try to improve the housekeeping. But in most instances, buildings are not in trouble. Where they are, it's probably due to a mixture of what you've mentioned. People trying to save money or they've constructed a building with the idea of saving energy alone with no other thing in mind, or they are simply ignorant that there could possibly be any adverse impact.

MS. SHERMAN: Do you think if we have another energy crisis that we might repeat some of the mistakes of the '70s to save money, such as shutting outside air dampers, et cetera?

DR. HOLCOMB: It could happen, but I don't think it's as likely to happen now. It's very clear to me that the technology available today is so advanced over what it was even five or ten years ago, the energy saving devices for equipment, the ability to recirculate air and filter air rather than bringing in quite as much outdoor air, the variable air volume systems that can be bad if they shut down completely due to just looking at temperature demands, but now have controls on them that will react to moisture, to temperature, to CO2, if you like, or to a variety of organic compounds.

So I think we have today the technology to provide very good indoor air quality. That doesn't mean that the equipment will always work. That doesn't mean that it won't fail at times. But it does mean that we have the ability to do it on an everyday basis, and that when that equipment fails, it can be repaired.

MS. SHERMAN: You've had occasion yourself to do indoor air quality evaluations?

DR. HOLCOMB: Yes, I have.

MS. SHERMAN: Have you investigated any situations that you think might be characterized as sick buildings?

DR. HOLCOMB: We characterized it within our own group, and suggested to the client that the building had severe problems, but we were not able to talk individually to the employees that were in the building.

That's frequently the case, to determine what their complaints were. Frequently the owner or the manager of the building will share with you some of the potential complaints, and then when you look at it, you can begin to see, you take a few measurements of the indoor air quality, you can get a good idea...

If the building is occupied, at least seven people per thousand square feet as the ASHRAE Standard uses occupancy for ventilation purposes. If it's that kind of occupancy and you have CO2 levels that are up around 2,000, you know that the indoor air quality certainly has the potential for being deteriorated. Then if you take measurements of other things in the atmosphere and you can see that obviously, maybe there's mildew, that there are bacteria and fungi. In fact sometimes we do take those measurements for bacteria or fungus spores, and you can find those at very high levels. You get a good indication that those complaints probably are on the mark.

MS. SHERMAN: When you go in to investigate in the indoor air quality in workplaces, have you had occasion to have an employer make available to you employee complaint logs?


MS. SHERMAN: Do you think that would be useful to you in investigating the problems of a building?

DR. HOLCOMB: It may be, but I think too often, unless that complaint log is very, very carefully put together, that it may be only anecdotal. And certainly if I'm the manager of the building, I think I'd want to know that, and I think I'd want to determine a way to record it so that it would be meaningful. But most frequently, it's only anecdotal information and there's nothing, no medical doctor's followup on it, no real followup as to whether or not the building owner did something to the HVAC system and then the symptom disappeared. So it may or may not be of any value. It's going to depend a lot on the individuality of who does it, how rigorous they do it.

MS. SHERMAN: Would you agree at least that it would be a good starting place, especially in a large workplace, to see where the clusters of complaints come from geographically?

DR. HOLCOMB: It may be. It may be. I've never pretended to be an expert in deciding how to keep logs or how to do questionnaires with regard to indoor air quality. It may be helpful, but I just don't know.

MS. SHERMAN: When you go in to investigate indoor air quality complaints, do you ever ask to look at the schematics of the ventilation system?

DR. HOLCOMB: We always do. In fact we usually ask for that before we even leave our offices.

MS. SHERMAN: Do you think that having the schematics is critical to an evaluation?

DR. HOLCOMB: Absolutely.

MS. SHERMAN: Do you find that they're usually available to you?

DR. HOLCOMB: They're generally available, but sometimes it takes people awhile to find them.

MS. SHERMAN: In other words, they may not have been referred to very frequently,

DR. HOLCOMB: They frequently have been "lost" but I don't believe any time that we've gone in that they weren't found eventually, and we were allowed to look at them.

MS. SHERMAN: Have you then performed an educational function of sort of explaining why they're important to these people?

DR. HOLCOMB: Well, it depends on who you're talking to. If you have the right person there to talk to, it may be educational, to them. But if it's not the right person, then it may not help at all.

MS. SHERMAN: In the indoor air quality investigations you've done of workplaces, can you make a distinction between large workplaces and small workplaces in terms of the availability of the schematics?

DR. HOLCOMB: I don't think there's been any difference. We have never done an air quality study in what I would call a huge downtown building like a million square feet or half a million square feet. But in anything that we've done them in, I can't recall, as I said, we've always gotten the schematics eventually, but I don't recall if there was any difference between large buildings or smaller ones.

MS. SHERMAN: When you do a indoor air quality investigation of a workplace, how do you charge the client? Is it on a per square foot basis, on a time and materials basis?

DR. HOLCOMB: Just time and materials.

MS. SHERMAN: Any laboratory fees go on top of that?

DR. HOLCOMB: Yes. We farm out our laboratory work, and we just add that as a direct expense.

MS. SHERMAN: Is there any formula that you use to calculate what the expenses will be when somebody calls you to do one of these indoor air quality investigations?

DR. HOLCOMB: About the best you can do is to, after you've done a few, of course, you can kind of eyeball it even though it may not be there in front of you. You're saying there are so many floors to this building, they have so many HVAC units in that building, they have so many employees, and we always give a client an estimate of a range. We never give them a fixed value other than that the upper range will not be exceeded, but that it may be closer to the lower range. By doing that, we safeguard ourselves in terms of number of hours. In fact, we find people saying no, if you're going to come close to the higher range, we can't afford to have you do it. But we find that by doing that we can bracket the range of hours that it will actually take.

MS. SHERMAN: Is it possible that in your estimate of the costs you take into account the square footage, and that becomes a part of your estimation of time and materials?

DR. HOLCOMB: It would. I don't think we've ever done in on a square footage basis. But as I said, if you eyeball a situation, you know you've got so many floors and so many HVAC units, that's going to average out in terms of its applicability to square footage. But we've never done it based on square footage.

MS. SHERMAN: Is there a certain amount of time that you sort of mentally assign to each HVAC unit in a space that you're going to investigate?

DR. HOLCOMB: No. No. We just, you know it's going to take you an hour to get there, maybe. And you get there, and you know you're going to want to look at the HVAC system, and it's going to take you between, if it's a very small building, maybe an hour; and if it's a very large building, comparatively, it may take you a half a day. Based on that evaluation, and you may want to take some air quality measurements, so you assign yourself to okay, I've got a day to go, take some measurements, do some evaluation, take some notes, and return back to the office.

Only infrequently do you have to return again. Usually... You may return a year from then if someone says we would like you to come back annually and take a look at the situation. But generally, one day of observations and measurement and one day of followup -- in lab, submittal of things to a lab and actual, maybe going back to the literature for some additional information, and perhaps consulting with other people, you write up a report. Generally, we find that we can do this all within 12 to 20 hours.

MS. SHERMAN: Twelve to 20 hours for the entire investigation?

DR. HOLCOMB: For the entire investigation, unless we run into a very difficult situation, something that requires followup and even additional measurements.

MS. SHERMAN: What do you charge per hour, so we could multiple it? In other words, if I knew your hourly rate, could I then multiple it by 12 hours to get a low end and 20 hours to get a high end estimate?

DR. HOLCOMB: For the people that we send out on these, generally around $75 to $100 an hour for the total number of hours. We'd make an estimate.

MS. SHERMAN: Would you agree that that would be a way of coming out with a low end and high end estimate?


MS. SHERMAN: Have you kept records of any of your indoor air quality investigations?

DR. HOLCOMB: I know we probably have some, but I don't know how many.

MS. SHERMAN: And so you don't know if you've kept records of a general description of the building and the problem that was found.

DR. HOLCOMB: I don't know. I suspect that we have some.

MS. SHERMAN: Do any of your investigations take a week or two?

DR. HOLCOMB: Oh, yes.

MS. SHERMAN: And this is...

DR. HOLCOMB: I mean the overall time. You may not be working at it every day.

MS. SHERMAN: No, I mean in terms of billable time.

DR. HOLCOMB: No, not in terms of being at the building or in taking a whole lot of different tests. I think we think we know what we're doing. And we don't think that it takes an awful lot of time to begin to find out what's going on. Most frequently you can walk into a building and if there's something obviously wrong, you're going to find it in a hurry.

MS. SHERMAN: Have you ever run into a situation in a building investigation you've done where you feel there's a building-related illness involved? By that I mean something like Legionella.

DR. HOLCOMB: Not Legionella. We've done a couple of investigations in schools where it was very obvious that they had high levels of fungal spores and it was very obvious where they were coming from, and we made some recommendations on how to handle that.

Another case involved a home that had a severe fungal infestation in the interior of the walls. It was just a very expensive, beautiful home that was improperly constructed. But a severe, to the point where the people at the lab told us, or asked us when we sent the samples to them, "Did you provide protection to your worker when they went to that building?" They wanted us to go back and double check the samples to determine what the, just to make sure that it was what they thought it was.

But yeah, there are some obvious cases where there were symptoms in those cases, in the children in schools. Not severe, but on a day-to-day basis, high incidents of absenteeism in children. CO2 levels were around 2500 parts per million every time we measured them. Obviously, very poor ventilation and exposure to a lot of fungus.

MS. SHERMAN: Have you run into any problems with your indoor air quality investigations that suggest to you the inappropriate application of pesticides is contributing to the problem?

DR. HOLCOMB: I believe there was one, but I can't recall... I'm a bit confused on this because we did run into it two or three times when I worked as Director of the State Toxic Substance Control Commission where people brought to our attention spraying of pesticides, and an especially bad situation where they did it while people were present, where employees were present when they did the spraying. In those cases, people claimed to be ill. I don't know whether they were or not, but they claimed to be ill. I don't know whether they were or not, but they claimed to be ill and I have no reason to disbelieve it.

MS. SHERMAN: Of the investigations that you've done, how often have you been able to discover the source of the problem?

DR. HOLCOMB: If they thought there was a problem, we always found it.

MS. SHERMAN: So you have 100 percent track record?

DR. HOLCOMB: I believe so. That doesn't mean that they always did what we recommended that they do.

MS. SHERMAN: That was my next question. What types of recommendations do you provide to your clients?

DR. HOLCOMB: We usually do this. We make some brief recommendations, usually not more than half a page to a page of things that we think they should do to correct the situation. And suggest to them that if they need help in followup on those, that we would be glad to consult with them further.

MS. SHERMAN: How often do your clients accept your recommendations?

DR. HOLCOMB: I think nearly all the time.

MS. SHERMAN: Do you ever have an opportunity to return to the places that you've investigated?


MS. SHERMAN: Have you found that your clients have implemented your recommendations?

DR. HOLCOMB: Sometimes they do part of what you suggested, but on the other hand sometimes you find that they've changed the occupancy somehow, that may either be for the better, in terms of serving for better air quality, or it may be for the worse. In fact, that may be why they've asked you to come back. Just to double check their building and their system to see that it's meeting what their needs are.

MS. SHERMAN: About what percentage of the time do you get to do a followup in your indoor air quality investigations?

DR. HOLCOMB: Oh, ten percent.

MS. SHERMAN: Would you like to have an opportunity to do that more frequently?

DR. HOLCOMB: In terms of amount of work?

MS. SHERMAN: No, just your professional responsibility.

DR. HOLCOMB: It's always, I think in terms of professional fulfillment, in trying to see things through, no matter what it is, you'd always want to see that it's followed up on. So from that aspect, yes. It would be wonderful to be able to follow up on all the situations.

MS. SHERMAN: Have you ever done any original studies in the field of active smoking?


MS. SHERMAN: Have you done any original studies of environmental tobacco smoke?


MS. SHERMAN: Have you done any original studies in toxicology?


MS. SHERMAN: Could you tell me something about them?

DR. HOLCOMB: The toxicological studies?


DR. HOLCOMB: As I suggested to you, the research that I carried out in my PhD thesis with regard to effects of various doses of progesterone on reproduction in mink. We did physiological and histological studies of tissues of mink. Mink have a delayed implantation of the embryo, some 30 to 40 days after mating occurs. The blastocyst lies free in the uterus so there are a lot of ways that that may be impacted to decrease, if you can decrease the implantation time, you may actually increase the number of kits born per litter of mink, which to the mink rancher would be a highly economic situation.

So we tried injecting and feeding various doses of progesterone to these animals.

Another study that we did was the effects on reproduction of DDT in mice. These studies, by the way, have all been published in peer reviewed literature.

Other studies, I studied the effects of meserol which is a chemical by the name of methyocarb on inhibiting feeding habits in birds. It's a distasteful material. Usually does not kill the animal, but can become very distasteful. So we...

MS. SHERMAN: It protects crops?

DR. HOLCOMB: To protect crops, yes.

I don't know of any others that were directly related. We... When I say we, I directed all of the research activities for the Michigan Toxic Substance Control Commission, and we farmed out, we developed the research protocol and then had various studies carried out on effects of various compounds that we felt may or may not be toxic in the environment.

MS. SHERMAN: Have you ever performed any bioassays?

DR. HOLCOMB: Bioassays? In what respect? You mean doing tissue studies and that sort of thing when exposures took place?

MS. SHERMAN: Animal studies. For instance, dosing rats with different amounts of...

DR. HOLCOMB: The only studies that I did where we examined tissues in any detail were my mink studies and the mice studies.

MS. SHERMAN: Have you performed any original epidemiological studies?


MS. SHERMAN: Have you performed any original studies in the field of risk assessment?

DR. HOLCOMB: I guess I have to know a definition of original. I do risk assessment on a day-to-say basis. That's essentially what we do for a living, is try to determine the risk, using EPA protocol or if we're dealing with air, water, and soil. So we do a good deal of risk assessment

MS. SHERMAN: Have you published any risk assessments on any carcinogens in peer review journals?


MS. SHERMAN: Could you elaborate?

DR. HOLCOMB: Yes. In fact I could supply papers with you. In fact we have another, I could even give you a pre-publication of one.

We've looked at the effects of PCBs and many of the chlorinated dibenzo dioxins and furans as people are exposed to them by inhalation, or by foodstuffs. And we have looked at most exposed individuals in ambient environments and what the risk would be of developing lung cancer or other pulmonary effects, or dose compounds. We've looked at the same group of chemicals with regard to its impact on fish and wildlife, and on people who may eat those fish.

MS. SHERMAN: Who funded the study?

DR. HOLCOMB: Who funded the study? Those studies were largely funded by some large corporations.

MS. SHERMAN: Chemical companies, I assume?

DR. HOLCOMB: No, no. In fact it was the cement manufacturing business.

MS. SHERMAN: Have you published any risk assessments in peer reviewed journals dealing with systemic toxins? By that I mean non-cancer risk assessments.

DR. HOLCOMB: Non-cancer risk assessments?



MS. SHERMAN: Could you elaborate a little bit?

DR. HOLCOMB: These same studies with the chlorinated compounds. Going back to the mouse studies, that's why DDT was banned for manufacture in the United States was because it had a reproductive impact, was the largest impact. Not on people, but on critters in the environment, largely birds.

MS. SHERMAN: Are you saying that you did the DDT studies that led to the ban?


MS. SHERMAN: I'm confused by your answer.

DR. HOLCOMB: We actually did the studies before the ban. I don't know whether they took our paper into consideration or not. These papers were done before the ban, though, on reproduction.

Since then, reproduction and embryonic impact, impact on a developing embryo is where the action is today. If you're looking at effects of chemicals in the environment, that's where you would most likely find an impact is on the developing embryo and at a very early stage of development. We have written risk assessment papers regarding the exposures in the environment to these materials, compared those to the clinical studies that were done and the laboratory studies that were done, to determine what, if any, risk there was to embryos or to reproduction.

MS. SHERMAN: When you submit the complete CV, will these papers be listed?


MS. SHERMAN: Thank you.

Do you believe that cigarette smoke has any effect on the embryo?

DR. HOLCOMB: That's a good question, but I'd have to more narrowly define what do you mean by effect, and are you talking about environmental tobacco smoke.

MS. SHERMAN: Let's start with active smoking. Do you believe that active smoking causes low birth weight?

DR. HOLCOMB: I don't know. I know that there is literature on that. I have not reviewed that literature on direct smoking.

MS. SHERMAN: What about for environmental tobacco smoke?

DR. HOLCOMB: For environmental tobacco smoke? I don't believe that there's any evidence that I would take note of that there is an impact, that there is a causal impact. I think there is some evidence of an association at times, but I think equally, that there are studies that show that there's not an association.

MS. SHERMAN: So you have reviewed the literature in this area?

DR. HOLCOMB: Yes, but not to the degree I have the exposure data.

MS. SHERMAN: So based on your review of the literature, you don't feel that you could make a connection between low birth weight and environmental tobacco smoke exposure?

DR. HOLCOMB: A connection? I'm not sure how I'd define connection. I certainly don't think there's any causal...

MS. SHERMAN: Is there an increased risk?

DR. HOLCOMB: Is there an increased risk? I don't think there's any evidence for an increased risk. There are too many studies that show differences, and too much a lack of looking at things, like things for confounding factors.

For instance, suppose somebody's exposed to ETS? Did they eat a salmon from Lake Michigan that had five parts per million PCB in it? PCB is supposed to cause a reproductive impact, impair birth weight, and all sorts of things in mothers that are so exposed. I've seen none of these studies that looked at any of these chlorinated compounds. Not one. That's just one. That's just one group of chemicals, let alone all the other confounders that may exist.

MS. SHERMAN: Would you be willing to submit to the record the studies that you feel are inadequate to show an increased risk of low birth weight?

DR. HOLCOMB: For ETS exposure?


DR. HOLCOMB: Those that do not show an effect?

MS. SHERMAN: The ones that you feel do not.

DR. HOLCOMB: I'll try.

MS. SHERMAN: Thank you.

JUDGE VITTONE: Excuse me a second. When you say submit for the record, you mean you want him to submit the studies? Or identify them.

MS. SHERMAN: He can identify them and he can identify why he doesn't feel they do the job adequately.

JUDGE VITTONE: Because my question, I guess, really is, maybe some of these things are already in the record.

MS. SHERMAN: Exactly, but what I'm asking for is his opinion.


MS. SHERMAN: Do you believe that an increased in morbidity and mortality is associated with tobacco use?

DR. HOLCOMB: With direct smoking activity?


DR. HOLCOMB: Could you repeat that question? I'm sorry.

MS. SHERMAN: Do you believe that an increase in morbidity and mortality is associated with tobacco use?

DR. HOLCOMB: I think there is some association in the literature.

MS. SHERMAN: Do you believe that active smoking causes cancer in humans? Excuse me, lung cancer in humans.

DR. HOLCOMB: Believe me, I am not an expert on direct smoking. From what I can see in the literature, and I have not read all the Surgeon General's reports. I have read parts of them, or I have looked at a document now and the, but from what I can gather, I would call it an increased relative risk for those that are direct smoking compared to those that are not.

MS. SHERMAN: So the answer is yes?

DR. HOLCOMB: Certainly not anything that would indicate to me that it is the causal mechanism, but certainly an increase in relative risk.

MS. SHERMAN: Would you have the same answer if I asked you if you believed active smoking resulted in the development of heart disease in humans?

DR. HOLCOMB: I would say the same thing, except that the increase in relative risk there is much, much smaller.

MS. SHERMAN: Are there carcinogens in cigarette smoke?

DR. HOLCOMB: I believe there are some that would be considered carcinogens.

MS. SHERMAN: And are these same carcinogens present in environmental tobacco smoke?

DR. HOLCOMB: Some of them are. If they are indeed carcinogenic at the levels of exposure to which one would be exposed, again, I go back to the levels of exposure that I have identified for you, I do not believe, I do not, I strongly do not believe that they have been shown to be a carcinogen at those levels of exposure.

MS. SHERMAN: So you believe there is a threshold below which there would not be any carcinogenic effect for these substances.

DR. HOLCOMB: I believe that's generally the case.

MS. SHERMAN: And would you be willing, perhaps in a post-hearing comment, to give me what you believe the thresholds are for the various carcinogenic substances that have been identified...

DR. HOLCOMB: No, because I don't believe anyone has ever done that.

MS. SHERMAN: So then would it be fair to say that you believe there is a threshold, but you're not sure what it is?

DR. HOLCOMB: I've made some recommendations for a few things, some pretty firm recommendations, most recently to ASHRAE, for some concentration values that I feel would be very adequate. You can take those for what they are.

If I thought there was going to be any significant risk for cancer or any other disease, I wouldn't have proposed those values. Benzo(a)pyrene is one of them.

MS. SHERMAN: These are threshold values?

DR. HOLCOMB: No, they're not threshold values. They're values that I consider to be safe in an indoor environment.

MS. SHERMAN: What are you basing this on?

DR. HOLCOMB: I'm basing it on a lot of literature. I'll be glad to give you a copy of it.

MS. SHERMAN: I would like to see that. I take it in this recommendation you set forth your rationale?

DR. HOLCOMB: Oh, yes, absolutely.

MS. SHERMAN: Yes, I would appreciate it if you would submit that to the record.

In an earlier submission by WashTech, I believe they did this at the request of Philip Morris, evidence was presented that animals exposed to ETS for 90 days exhibited reversible cellular changes in their nasal cavities and pulmonary tree. I guess these studies reported hyperplasia. Is this part of the progression of normal cells to cancerous cells?

DR. HOLCOMB: I have not had the opportunity to see that study. I'd rather not comment on it until I see it.

MS. SHERMAN: I'm sure you'll find it in the record.

Is hyperplasia part of a progression?

DR. HOLCOMB: It may be, but the hyperplasia that frequently occurs is due to irritation effects. I think if you go back to what some experts have published in the literature, Gold and others out of California, and Bruce Ames, the multitude of studies that are done with substances that are then called carcinogenic, have only been found to be carcinogenic at levels that have a very, if they don't kill the cells, have a very irritating effect on those cells. Hyperplasia can be a response to irritation. If there is sufficient damage done to those cells due to an acute exposure, they're going to try to multiply. When they do, that's hyperplasia.

MS. SHERMAN: Would you consider hyperplasia to be an adverse effect?

DR. HOLCOMB: No, it may very well be a beneficial effect.

MS. SHERMAN: How so?

DR. HOLCOMB: If you have an irritative substance there and cells begin to rapidly multiply in response to that kind of exposure, they will protect the underlying layers of cells. The hyperplasia is usually in the epidermal tissue.

MS. SHERMAN: However, is it not true that the more rapidly cells reproduce, the more chance there is of some sort of a mistake in reproduction?

DR. HOLCOMB: But how many... Let's go back to what are you counting now? If you're looking at potential mutagenic effects or carcinogenic effects, there are millions if not billions of potential occurrences in our cells every day in our body. We wouldn't be here today, we would all be dead if, in fact, even a very small fraction of those resulted in a carcinogenic end point.

MS. SHERMAN: Are you familiar with the literature on formaldehyde?

DR. HOLCOMB: Somewhat.

MS. SHERMAN: Are you familiar with the fact that formaldehyde has been shown to be acutely irritating, causing hyperplasia, which is then thought to be responsible for the formation of nasal tumors?

DR. HOLCOMB: I've seen it. In fact the Toxic Substance Control Commission devoted several meetings and documentation on formaldehyde alone, on that very issue. Years ago. And I'm pretty confident that I have enough information since then, only done on nasal tissue in the rat, only, first of all. Where they got this kind of reaction occurring.

Formaldehyde, in my mind, may or may not be carcinogenic. Certainly at the levels of exposure that we encounter in indoor air on a regular basis, the levels that I showed you have no threat for carcinogenic activity. It's just not there at those levels. For humans.

MS. SHERMAN: Is chemically induced hyperplasia a beneficial or an adverse effect, in your opinion.

DR. HOLCOMB: Would you repeat that, please?

MS. SHERMAN: Is chemically induced hyperplasia a beneficial or an adverse effect?

DR. HOLCOMB: It may be beneficial, it may be adverse. It depends on the end point beyond that time. I think you have to put it completely in context of the exposure to that particular compound, and to other compounds, and to followup exposure to other materials. If it's just a very short duration exposure but acute, and it causes hyperplasia, but that hyperplasia, in fact protects against some other material that may be there, decreasing exposure to the underlying tissues. In most cases we're not worried about short term hyperplasia in epidermal tissue. Epidermal tissue increases very rapidly and is capable of protecting itself by that means.

MS. SHERMAN: Would you agree that there are irritants in tobacco smoke?

DR. HOLCOMB: Absolutely.

MS. SHERMAN: Didn't Hiryama report increased nasal sinus tumors in passive smokers?

DR. HOLCOMB: Let me answer the last question before that fully, first. Are evidences of irritation from tobacco smoke compounds or to ETS at high concentrations of exposure?

I'll give you an example. I don't know if you have access to or you've seen Rebecca Bascomb's work, or whether she's submitted anything for the record or not. There was a discussion here yesterday about Layard and his associates. But if you look at Bascomb's work you can find small changes in epithelial cell reactions to tobacco smoke if you have levels generally exceeding carbon monoxide of 15 parts per million or greater, usually much greater.

If you go to Weber's study, or if you go to Kane and Leaderer, or Leaderer, a remarkable set of experiments in chamber studies with people, an irritation to eyes or irritation to upper respiratory passage due to exposure to tobacco smoke, you'll find that unless you have carbon monoxide, generally above two parts per million, attributable, the CO level attributable to ETS, that there is no irritation to eyes or upper respiratory passages.

MS. SHERMAN: Is what you're saying that the irritating substance in tobacco smoke is carbon monoxide?

DR. HOLCOMB: Not at all. It serves as a surrogate for other things that may be there.

MS. SHERMAN: What does it serve as a surrogate for, do you know?

DR. HOLCOMB: Whatever is in ETS.

MS. SHERMAN: So you don't know if you have carbon monoxide levels above, what level did you say?

DR. HOLCOMB: Two parts per million.

MS. SHERMAN: That you then have clinically proven irritation of the eyes and upper respiratory tract, but you're not sure what levels of other substances are dwelling behind that two parts per million. Is that a fair...

DR. HOLCOMB: No. I don't think I'd let you suggest that that's what I mean at all.

I'm telling you that if you look at their records...

MS. SHERMAN: Excuse me?

DR. HOLCOMB: If you look at the records submitted in the peer reviewed literature by Weber, and I think I've quoted Weber in my references. I'm sure I did. 1984, "Acute Effects of Environmental Tobacco Smoke," European Journal of Respiratory Diseases. Then I've quoted papers by Kane in 1987, "Environmental Tobacco Smoke, Sensory Reaction of Occupants," in Atmospheric Environmental. And I don't know if I quoted another one by Leaderer and Kane or not.

In any event, those... Yes, I have three or four papers by Leaderer and associates with regard to combustion products from tobacco smoke and those all show very clearly, and in fact I've heard Kane comment on it within the last year or two, several times, that you have to get to those levels to have an irritative response.

MS. SHERMAN: Do you believe that Weber showed an absolute threshold for irritation at two parts per million of carbon monoxide?

DR. HOLCOMB: No. I don't think it's absolute. It could be five parts per million for some people, it could be 1.5 for others.

MS. SHERMAN: If you believe carbon monoxide is a good biomarker, would you say that it dissipates at the same rate as other environmental tobacco smoke components?

DR. HOLCOMB: No, I don't believe it's a good biomarker. That has nothing to do with... What I've told you has nothing to do with being a good biomarker. I don't think CO is a good biomarker at all. I think that carbon monoxide in this case, when measured together with these other materials, and I believe Kane and Leaderer looked quite a bit at respirable particulates, too, at the same time, that if you take that into consideration, that until you get to those levels of carbon monoxide, that you're not likely to have eye or throat irritation.

MS. SHERMAN: Perhaps I should rephrase the question. If you believe that carbon monoxide is a good surrogate, do you believe that it dissipates at the same rate as other ETS components?

DR. HOLCOMB: I don't think that it dissipates the same. I think each component would change reactively to whatever environment's there, depending on temperature, humidity, light, and a variety of other factors. Each one is going to be different.

MS. SHERMAN: Would you consider cilia toxicity to be an adverse health effect?

DR. HOLCOMB: It depends on how long it lasts. If it's cytotoxicity, if those cilia quite meeting because they're dead and they're not replaced and it's a long-lasting reaction, I would consider it an adverse impact.

MS. SHERMAN: How long do you mean by long?

DR. HOLCOMB: Again, if you acutely expose these tissues in the upper respiratory tract, say down into the bronchi where there are cilia, and of course there are also a lot of mucal, not just ciliary impacts, but the mucous glands there, too, that secrete, depending on the demand due to irritation. If these cilia are reacting and are impacted adversely for an acute, short term duration, then they are replaced, these cells are replaced by the underlying tissue, then I see... It may be adverse for one. Ten minutes, 20 minutes, a half an hour or an hour, but not for the long term. Or it may be adverse. If it's a chronic thing and it's a high exposure, and every succeeding level of tissue that's coming from the basement membrane...

MS. SHERMAN: The what membrane?

DR. HOLCOMB: From the basement membrane for the epithelial tissue, these are columnar ciliated, usually columnar ciliated epithelia that are being impacted. Sometimes cuboidal. But usually largely columnar ciliated epithelium that have a basement membrane, and there's rapid replacement of those cells as they die. Unless you have a chronic exposure that's acute, then it may or may not be an adverse impact.

MS. SHERMAN: Would you agree that a chronic acute exposure would be an adverse health impact?

DR. HOLCOMB: It may be if it's high enough.

MS. SHERMAN: Has cilia inhibition been linked to adverse health effects?

DR. HOLCOMB: I'm sure it must have been, but I couldn't quote you where. I'm sure it has.

MS. SHERMAN: Would you happen to know the concentrations at which the cilia toxins could be considered safe?

DR. HOLCOMB: I wouldn't venture an answer to that. No. I don't know.

MS. SHERMAN: Are you familiar with Dr. Gori's testimony here?

DR. HOLCOMB: I reviewed it briefly. I don't know it word for word, certainly, but I did review it briefly.

MS. SHERMAN: I don't know it word for word, either.


MS. SHERMAN: What is the cilia toxicity NOAEL observed effect level for some of the chemicals that Dr. Gori labeled cilia toxins, such as nitrogen oxide?

DR. HOLCOMB: I don't know. I could find that out for you, but I don't know.

MS. SHERMAN: If you can find it out, I would be interested in it for nitrogen oxide and for hydrogen cyanide and for acrolein.

DR. HOLCOMB: For nitrogen dioxide?

MS. SHERMAN: No, nitrogen oxide.

DR. HOLCOMB: Nitrogen oxide and cyanide?

MS. SHERMAN: Hydrogen cyanide. And acrolein.

Would you expect a mixture of cilia toxins to be additive, synergistic, or antagonistic?

DR. HOLCOMB: Excellent question. I don't think anybody knows. Just an educated guess, though, is that they could be any one of those or there could be antagonism between them.

If the mode of biochemical action is the same for each compound. In other words, the adverse effect of that compound acts at the same point in that cell, whether it's at the mitochondria level or whatever, and then there may be some antagonism, one may block the effect of the other. Unless they're at all very, very low concentrations, but I think with regard to the compounds that you're talking about here, it may be adverse to cilia movement that you're not going to get exactly the same mode of action.

MS. SHERMAN: Do you know of any published research in this area that you could recommend?

DR. HOLCOMB: No, I don't. I'm more familiar with things related to some of the volatile organic compounds, and even there you get, there's very little literature available.

One of the goals years ago, about ten years ago, by USEPA was to test a variety of compounds just like that, which would be great if we had the information, you could say you're exposed to two compounds together or three or four or five or six. The experimentation, though, is so difficult to carry out, there have been a few studies done with up to two at a time and maybe three at a time now, and at very, very low concentrations there may be an additive effect, except that there is no effect at those low a levels. So you get an impact if you test at high concentrations, but you don't get an adverse effect if you... You may get a biochemical change but you get no actual adverse effect of the tissue, or to the animal.

MS. SHERMAN: Do you know if nitrogen oxide acts differently than hydrogen cyanide to induce cilia toxicity?

DR. HOLCOMB: I don't know.

MS. SHERMAN: In Dr. Gori's status report of 1978, he stated that "Carbon monoxide, a major toxin present in cigarette smoke, causes damage to the cardiovascular system as well as to other physiological functions."

Do you believe that carbon monoxide causes damage to the cardiovascular system?

DR. HOLCOMB: I think it would cause damage to any system at a high level of exposure. When I say high level of exposure, I'm talking about levels, 100, 200 parts per million. You're going to have, anything affects cellular respiration, you're going to have an adverse impact.

MS. SHERMAN: Do you know a safe level below which carbon monoxide does not produce damage to the cardiovascular system?

DR. HOLCOMB: I'm going to give you an educated guess, that the EPA standard that's used for ambient outdoor air is about right, around nine parts per million. That doesn't mean that there might not be some change biochemically in tissues that is readily repaired or altered back to normal below that point, but I'd use... If I got up around nine parts per million I'd start saying I ought to do something to make that level go back down.

MS. SHERMAN: In Table 4 of your comments, what are the assumptions underlying the ETS concentrations and dose?

DR. HOLCOMB: In my submitted document?


DR. HOLCOMB: Table 4?


DR. HOLCOMB: Would you repeat your question, please?

MS. SHERMAN: In Table 4 of your comment, what are your assumptions underlying the ETS concentrations and dose?

DR. HOLCOMB: The concentration level I have for the first column, ETS is represented in my 1993 paper. The concentration is less than one part per million, or less than 1.1 milligram per cubic meter, and that's taken directly from the smoking versus non-smoking data. And the weekly dose is determined by assuming an exposure that is at those levels with a breathing volume, I believe, that I have shown below of around, I believe we assumed around one cubic meter an hour.

MS. SHERMAN: Could you provide your calculation on that, please?

DR. HOLCOMB: Absolutely. Do you want it for all of...

MS. SHERMAN: Yes, I would like it.

DR. HOLCOMB: In the subscripts for the second column, the automobile non-smoking levels, we're assuming 1.4 hour per day exposure and seven days per week, and 1.05 meter cube per hour respiratory rate. That one you have.

For the personal auto, we have that, and for, I'm trying to see where I referred to C here. I don't even see it. We're assuming normal respiration rates and essentially exposure. But I can give you the exact calculation.

I believe that we were assuming that either 60, around 60 or 65 percent retention of the carbon monoxide. That will all be...

MS. SHERMAN: That will become apparent from the calculation.


MS. SHERMAN: In Table 5 of your comments, what are the assumptions underlying the ETS concentration and the weekly dose?

JUDGE VITTONE: Let me interrupt here.

Ms. Sherman, would this be a good time for a break? We've been going for almost two hours here.

MS. SHERMAN: Are we talking a lunch break, or just a break?


MS. SHERMAN: That's fine.

JUDGE VITTONE: Let's take ten minutes.

JUDGE VITTONE: On the record.

Ms. Sherman, are you ready?


Dr. Holcomb, I'm...

Perhaps the Court Reporter could read back my last question.


DR. HOLCOMB: I think I remember.


DR. HOLCOMB: On Table 5, you were asking me how the calculations were made in regard to doses. There, we assumed that nicotine was available at six micrograms per cubic meter in indoor air, and that the exposure was based on a weekly exposure, and that the, I would go back to the assumptions in terms of the calculation.

We used a figure derived for nicotine absorption based on a 1994 paper by Magawi. I've quoted the Magawi paper in my...

MS. SHERMAN: Were the concentrations and doses calculated for an adult?


MS. SHERMAN: Do the other tables that you submitted use the same assumptions as Table 1 and 2?

DR. HOLCOMB: For which tables?

MS. SHERMAN: Excuse me, four and five.


MS. SHERMAN: Did you always assume a 40 hour work week?


MS. SHERMAN: Can you send your calculations on these other tables also, then?

DR. HOLCOMB: I believe all the assumptions are there as footnotes to those. For Table 5 they're there. For Table 6 all of the assumptions on respiration rate, duration of exposure, retention rates are all there. The same for Table 7 on the nitrosamines. If there's something there that we haven't, if I haven't given it there I'd be glad to provide it, but I think we have all the assumptions at the base of those tables.

MS. SHERMAN: My project officer tells me that she would still like the calculations, if that's possible.

DR. HOLCOMB: You shall get them.

MS. SHERMAN: Thank you.

I believe that in your August 13th submission you indicated, or you stated that "OSHA never explains why the principal constituents of ETS become a health risk a levels well below the agency's PELs, merely because they originate from a cigarette rather than from some other source." Do you remember that statement?


MS. SHERMAN: Is it your belief that no health effects would be expected from a mixture as long as each individual chemical is at or below the PEL?

DR. HOLCOMB: No. I believe that if you had every conceivable substance that OSHA regulates with PELs at the PEL, I wouldn't want to be in the room. I think that certainly is too much.

I think where substances are additive, are known to be additive, and they're adverse impact, and if there is, indeed, no antagonism built in between various substances, that something like the OSHA guidelines for additivity are fine.

MS. SHERMAN: What are some of the disease risks associated with polycyclic aromatic hydrocarbons?

DR. HOLCOMB: Some of the disease symptoms?


DR. HOLCOMB: Risks? I don't have those here with me. Some of them have been published, I think, by EPA.

MS. SHERMAN: Do you know what the no observed effect level, or NOAEL is for benzo(a)pyrene?

DR. HOLCOMB: No, I don't.

MS. SHERMAN: Could you tell me some of the adverse effects associated with nitrosamines?

DR. HOLCOMB: Adverse effects?


DR. HOLCOMB: I don't have any literature with me here today. I don't know.

MS. SHERMAN: You're not familiar with...

DR. HOLCOMB: I know that I've read it, and I know that I've reviewed it, and probably more than once in my life, but I don't have it with me and I wouldn't conjecture.

MS. SHERMAN: Do you know what the NOAEL level is for nitrosodiethylamine?

DR. HOLCOMB: No, I don't. I believe I can assure you, though, that there is no documentation, no literature, that shows that there is an adverse effect at the level of exposure that one gets under ambient air conditions or ETS is present.

MS. SHERMAN: But that isn't exactly what I asked you.

DR. HOLCOMB: You can take it for what it's worth, but I can tell you that these levels are remarkably small. They're not anywhere near realistic. The concentrations that you are considering that do cause adverse health effects have been demonstrated with animals or with people, are not at all comparative to the levels associated with ETS exposure.

JUDGE VITTONE: Let's get a question.

MS. SHERMAN: I believe in an earlier statement you indicated that some foods contain large amounts of nicotine.

DR. HOLCOMB: Not large amounts, no. They contain some nicotine. The salationae family of, like eggplant, tomatoes, so forth, contain some. Potatoes.

MS. SHERMAN: Does nicotine disappear or is it reduced when the food is cooked?

DR. HOLCOMB: It does somewhat. If you cooked it there would be some disappearance, yes.

MS. SHERMAN: Is there a rate that one can calculate?

DR. HOLCOMB: I have no idea.

MS. SHERMAN: Are you familiar with the literature on the subject?

DR. HOLCOMB: I have read three or four or five papers with regard to these materials, with nicotine in some natural foods, yes.

MS. SHERMAN: Do they give any guidance for calculating the amount of food in cooked foods?

DR. HOLCOMB: I don't know.

MS. SHERMAN: I think you also said that nicotine levels have been measured in food and water?


MS. SHERMAN: What's the source of nicotine and water?

DR. HOLCOMB: I don't know but I suspect it is a very low level, for one thing, and I suspect it's associated with contaminants, if you want to call it a contaminant from exposure to those plants that have it. Whether it's sewage that gets back into a river and then the river water's taken in from a water treatment plant, and a small amount of nicotine is present. I don't know, but I suspect that's where it's from.

MS. SHERMAN: Might it be associated with the disposal of cigarettes?

DR. HOLCOMB: I have no idea. I just think it's associated with a waste of one type or another, or a product that naturally gets into the ecosystem and then is taken back up in the water.

MS. SHERMAN: Do you know if anybody has done any research on the source of nicotine in water?

DR. HOLCOMB: I can't imagine that they haven't, but I'm not aware of it.

MS. SHERMAN: On page 14 of your prepared statement, you criticized the study by Zhu et al in 1993. Have you read the study?

DR. HOLCOMB: Yes, I have.

MS. SHERMAN: Did the authors observe an increase in the infarct size and a decrease in the bleeding time?


MS. SHERMAN: Aside from environmental tobacco smoke, what other explanation could you give for this observed effect?

DR. HOLCOMB: Well, I'll tell you what. If I was exposed to those conditions, I would bet that I'd be under stress. Those are highly concentrated, not diluted, sidestream, aged diluted sidestream smoke, that's concentrated sidestream smoke. I know it would irritate my eyes. I know it would irritate my upper respiratory system. I know I'd be able to see it. I know I'd be able to smell it. If I were a rabbit, I think I'd be adversely impacted and I would be severely under stress.

We know that stress adversely affects the cardiovascular system. Sometimes to the good, sometimes to the bad. It depends on the situation. Sometimes if you need additional output and you're stressed, you'll get the additional output you need from your cardiovascular system to react.

In this case, rabbits are not in any place that they can escape, though. So you have a very artificial situation, and yes, I do think that they probably measured an increase in infarct size and a decrease in bleeding time. It has nothing to do with reality.

MS. SHERMAN: But it has something to do with cigarette smoke.

DR. HOLCOMB: Not with ambient exposure to ETS. Not at all.

Go back to the levels that they were exposed to. You're looking at particulates at 4,000 to nearly 33,000 micrograms per cubic meter. When in effect, what I've already told you is that under workplace atmospheres of offices and public places, the average is around 20 to 30 micrograms at the most. That's total RSP increase.

And you're looking at nicotine, 30 to 1,000 micrograms, when in reality it's six micrograms, generally less than that. And carbon monoxide that's around 19 to 60 parts per million, and levels of exposure are not increased in general exposure conditions.

So this is not exposure to environmental tobacco smoke under any stretch of your imagination.

MS. SHERMAN: Was there a dose response relationship in that study?

DR. HOLCOMB: In this study?


DR. HOLCOMB: I don't know. I'd have to look at it again. There could have been.

MS. SHERMAN: Aside from the dose being too high, do you believe that the increase in infarct size and decrease in bleeding time was caused by the cigarette smoke?

DR. HOLCOMB: I can't tell.

MS. SHERMAN: Assume for a moment that you're employed as an independent consultant to investigate a workplace hazard. While investigation you discover an association between a disease and a specific hazard in the workplace, but you don't find any specific contaminant over the OSHA PELs. Would you report no problem to the employees?

DR. HOLCOMB: I'd look at the strength of the association, first of all. And I would look at other literature that was associated with that kind of exposure to see whether or not my results compared with findings by other studies.

If the association of, and if I had good numbers. I'd want to know whether or not it had any resemblance to the population. And in the building... By doing it on 20 or 30 people, I'd say forget it. I'm not going to try it. If I've got a couple of hundred people in the building, I might begin to try to see if there is really an association. But if that association is less than three, 3.0 increase in relative risk for whatever I've decided is the adverse impact, I'm going to say, I don't think I've got anything here to hang my hat on.

MS. SHERMAN: Let's assume that the numbers are good and you have a relative risk of over three. Then what do you do?

DR. HOLCOMB: The relative risk is over three, and I've got something to report in terms of what might cause that, or might have a definite association with it. Then I would begin to make some recommendations. I would begin to say okay, if I remove this particular condition, what is the likelihood, what is the probability with which I can begin to say there's going to be a better situation for these people, that I could actually remove that adverse symptom. And I'd have to make my choices, I'd have to begin to decide whether or not to make a recommendation.

MS. SHERMAN: In spite of the fact that your measurements didn't show any over-exposures according to the OSHA PELs?

DR. HOLCOMB: Absolutely. There could be something else there in that environment. If you're just trying to say that there's an association or an increase in relative risk due to just being there in that office versus not being in that office, and there really is an increase in relative risk for something that's really an adverse symptom, then I would try to see what it was I would do to change that.

If there is, indeed, any evidence at all that they could be associated. Is it biologically plausible that it could happen? If there's no biologic plausibility for those increase in symptoms, the I might say to myself, forget it. That's not going to help these people. I'm just going to be causing this building owner grief over something that he has no control over.

MS. SHERMAN: It sounds to me like you might, under some very special circumstances, advise the employer that there was a problem, but in most likelihood you wouldn't.

DR. HOLCOMB: It depends completely on the situation.

MS. SHERMAN: On page nine of your comments you indicated that people who were exposed to ETS absorb about 46 micrograms per week of carbon monoxide while they absorb 50 to 138 micrograms per week while simply driving to work. Is that correct?

DR. HOLCOMB: I would correct, the micrograms are milligrams. It's milligrams.

MS. SHERMAN: It's milligrams?

DR. HOLCOMB: Yes. That's true. That's what I reported.

MS. SHERMAN: So you say they absorb...

DR. HOLCOMB: Less than...

MS. SHERMAN: ...milligrams per week of carbon monoxide if they're exposed to ETS...

DR. HOLCOMB: Less than.

MS. SHERMAN: Less than. And they absorb, is it less than or is it 50 to 128?

DR. HOLCOMB: Fifty to 128.

MS. SHERMAN: Milligrams per week while driving to work.


MS. SHERMAN: Is the act of driving to work voluntary?

DR. HOLCOMB: Let's hope it is. Yes. I'll say yes.

MS. SHERMAN: In your comments in response to the request for information, aren't the studies reviewed and the calculations presented substantially the same as in your Environment International paper which is called, I think, "Indoor Air Quality and Environmental Tobacco Smoke, Concentration and Exposure"?

DR. HOLCOMB: They are for respirable particulates. I don't think I did any calculations on anything but respirable particulates in the Environment International paper.

MS. SHERMAN: In that 1993 Environment International paper, in Table 1 you reported RSP data from a study of 38 office buildings by Grimes, Rudd et al?


DR. HOLCOMB: Yes, I did. 1990. Grimes, Rudd et al.

MS. SHERMAN: I believe there was an earlier and more detailed report of the same set of 38 office buildings by Turk et al in the ASHRAE transactions in 1989. Are you familiar with this?

DR. HOLCOMB: I know that I've reviewed the Turk data, but I don't know in what aspect I reviewed it. I can't be sure of this because I don't have the Turk paper here in front of me, but some data is excluded from our paper. I gave the methodology in the methods section.

MS. SHERMAN: I guess mu question is focused as to why you ignored the earlier study by Turk which showed higher levels of RSPs in smoking areas than in non-smoking areas.

DR. HOLCOMB: I know I'm not going to satisfactorily answer your question without looking at the Turk paper and deciding whether we eliminated it on purpose or not.

MS. SHERMAN: Perhaps you could do that as a post-hearing comment?

DR. HOLCOMB: Absolutely. The Turk '89 paper?

MS. SHERMAN: I believe it was in the ASHRAE transactions in 1989. I believe he showed mean RSP levels in buildings where 70 micrograms per cubic meter in smoking areas and 19 micrograms per cubic meter in non-smoking areas?

DR. HOLCOMB: I'll be glad to review that. It could be that he reported TSP. We did not, we looked only at respirable particulates, and we had a cutoff at five microns. If he looked at it differently than that, then we excluded it.

MS. SHERMAN: I believe also in your request for information submission to us, you listed North American studies of RFPs. I believe you included two papers reporting measurements in the UK by British tobacco industry scientists in the list of North American studies. Is there any particular reason for that?

DR. HOLCOMB: First of all, I'm not sure who they were done by. I'd have to go back and look. But we specifically in our methodology, if you recall on page ten in the third full paragraph on that page under methods, we said that when it was obvious that structures and sampling protocol for data required in countries outside North America were similar, it was included with the USA/Canada data. In this case, we can be assured that the HVC systems were similar to those used in North America; that the buildings the studies were done in were similar in configuration.

On the other hand, if you go to studies that were done in Europe, for instance, or Great Britain, wherever it might be, I can show you studies that were done in old buildings, that were done in buildings with natural ventilation rather with a heating, ventilation, air conditioning system, as we in general have in the USA or Canada, and for that reason, we included these too. They met all of our other criteria. If I [make] other studies from Europe, whether it was Swede or wherever, that could match our needs in terms of methodology, we would include those also.

MS. SHERMAN: So it wasn't an oversight.

DR. HOLCOMB: It was not an oversight.

MS. SHERMAN: I think you reported in your Environment International paper you reported on 25 studies of RSP levels and offices and in public places?


DR. HOLCOMB: We had 24. Yes.

MS. SHERMAN: Twenty-four. Is it true that the volume smoker density was only recorded in two studies?

DR. HOLCOMB: The volume density?

MS. SHERMAN: Volume smoker density.

DR. HOLCOMB: I don't know. I'd have to go back to our various columns where that was reported.

MS. SHERMAN: Well, if this was true, would you agree that this would severely limit the generalizability of the remaining studies?

DR. HOLCOMB: Not at all.

MS. SHERMAN: Why is that?

DR. HOLCOMB: I would have to look at all the data. We looked at the paper in total, every one of them that we cited met our conditions. They gave us data on respirable particulates in a smoking area and/or a non-smoking area, they were measured at 5 microns or less in diameter for particle size and all the other criteria that we had. And if they met that, I have no reason to disbelieve the data.

Furthermore, we're not talking about one study here, two or three or four, we're talking about 24.

Furthermore, the additional data that I gave you, the additional data since this paper was written which I believe is in Appendix A of the submission, the August submission, all of that data shows the same kind of data. So I have no reason to believe that this is aberrant data in any way.

MS. SHERMAN: But isn't it very difficult to compare studies without knowing the volume smoker density?

DR. HOLCOMB: No. I think it would be, I think, again, as I said, if I had one study or two studies or only three or four but when you define your criteria for acceptance of a study, it can't just be some place where you walked in and took one measurement or two or three. These are studies that were done, they showed exactly how they measured it. They had several samples. It makes no difference to me as long as I know, as long as I have a lot of studies and as long as it concurs with studies done in chambers, studies done taking UVPM or FPM or in other words tobacco-specific respirable particulates. When I look at all that together, there's nothing that leads me to believe that these are not truly representing the populations.

MS. SHERMAN: In your docket submission in response to our proposal, you cited several studies reporting higher levels for subjects exposed only at home versus those exposed only at work to ETS. Isn't it true that none of these studies reported the volume smoker density to which the subjects were exposed either at home or at work?

DR. HOLCOMB: I don't know but it makes no difference. Again, because I'm not depending on only one study. I know that people that are exposed in homes have at least as much as exposure as they do in the workplace and furthermore that certainly the mean values are higher in the home than they are in the workplace.

Again, I'm not depending on one study and I've given you all of the data that's available in the literature since this in my appendix to my submission.

MS. SHERMAN: So then is it your position that volume smoker density is not a useful piece of data to have when you have a number of studies as opposed to only one?

DR. HOLCOMB: It's one factor and I'd love to have it for all of them but I'd love to have a dozen more things, too. I'd love to have the ventilation rate in every one of those circumstances and usually they don't give it. That's the thing I'd like more than anything but it's not there.

MS. SHERMAN: Why do you suppose they don't give it? I've noticed that also.

DR. HOLCOMB: Because it's a lot of work. It takes time and it would probably -- if you were doing a study of this magnitude where they've -- and generally they've done more than one home, you know, they've done 20 or 30 homes or they've done 20 or 30 office buildings, it's a lot of work.

First of all, if you're going to use CO2 as your surrogate for ventilation, you've got to be sure that equilibrium has been established between the people, the occupancy in that volume of space. And if you're going to do gas exchange, then you're going to have to spend an extra day in every one of those studies just to get that data. So I know it would be nice to have and I'd love to have it but generally you don't have it.

MS. SHERMAN: Well, would you say that this is becoming recognized and you would expect this to be calculated in more recent studies?

DR. HOLCOMB: I hope so. I don't know that people will but I certainly would hope so.

MS. SHERMAN: Were you surprised that they didn't calculate it in the Oak Ridge exposure study?

DR. HOLCOMB: I haven't seen their study. I have looked at part of the testimony that Dr. Jenkins gave but I don't know what they did in terms of measurement of volumes or ventilation or anything like that.

MS. SHERMAN: In your docket submission, you stated that Repace and Lowery ignored the retention in calculating does?


MS. SHERMAN: Why is the retention important for the retention of lung exposure as opposed to long dose?

DR. HOLCOMB: Well, I don't see any difference. Unless you change the definition of dose or whether -- when I say dose, I'm assuming it's to the lung. It's not always to the lung, of course, but the studies that have been done, there are people who like to play around with active smoking data, for one thing. You know, how does that compare or could it be biologically plausible that ETS exposure is in any way, shape or form comparable to direct smoking activity. As far as I know, retention of tobacco smoke in a direct smoker is much higher than in the passively or ETS exposed non-smoker. The retention, I believe, is somewhere around 75 or 80 or 85 percent for the direct smoker and that's important because the concentration to which they're exposed is higher and if they have a higher retention efficiency then they're going to get a much larger dose.

Now, for those who are exposed to ambient ETS, if they're as Heller has calculated around 11 percent retention, then you're not going to have nearly as many respirable particulates that actually get to the lung and are not breathed back out in the next breath. That's very important, calculating those.

Now, I could have gone a step further. I don't believe anyone has gone this step further. Some of that that Heller would claim is retained is not really retained. It's retained temporarily but it's picked up by macrophage cells at level and they go out of the respiratory system and wind up as a mucus that you spit out or re-swallow. So that even the 10 percent or 11 percent that Heller calculated may be an overestimation. So it's very important calculating dose.

MS. SHERMAN: Is there something about the mechanism that makes retention more important than the delivered dose?

DR. HOLCOMB: Something that makes retention more important than the delivered dose?


DR. HOLCOMB: No, I wouldn't think so. The delivered dose is what would be important.

MS. SHERMAN: More so than the retention rate?


MS. SHERMAN: On page seven of your submission response to the proposal, you calculated a retained RSP dose based on Heller's retention data?

DR. HOLCOMB: Where is that now?

MS. SHERMAN: On page seven.

DR. HOLCOMB: Of my submission?



DR. HOLCOMB: Yes, I did. I used Heller's numbers there.

MS. SHERMAN: Your retention model assumes that deposited RSP is removed immediately from the lung and doesn't accumulate, right?

DR. HOLCOMB: No. I assumed in this case -- I am calculating dose and exposure based on retention. It's based on the concentration, the duration of exposure, the respiration rate and the retention, so it has nothing to do with that that's assimilated by the tissues. I'm assuming that all of it was retained.

MS. SHERMAN: Okay. So then -- okay.

Would it build up in the tissue?

DR. HOLCOMB: What would build up? I'm not sure what you were referring to.


DR. HOLCOMB: The respirable particulate?


DR. HOLCOMB: No. Not likely. Because there's a dynamic association going on there between the underlying capillary structure that's feeding blood to and from the alveolar level of the lung and the bronchi, the bronchioles. So you would have a dynamic association of macrophages picking up debris and carrying it away which would reduce the retention factor a bit. At the same time, there might be some assimilation of the material on the RSPs into the bloodstream. So I wouldn't think it would accumulate at that level.

MS. SHERMAN: On page seven you also stated that Eatough demonstrated that nicotine can't be relied upon as a surrogate for RSPs in environmental tobacco smoke.

DR. HOLCOMB: Yes, I did.

MS. SHERMAN: Isn't it true that Eatough's comments referred to total RSPs rather than ETS RSPs?

DR. HOLCOMB: I don't know if I brought Dr. Eatough's paper with me. Let me just check here.

I did bring it. I don't recall whether he did it on total RSPs or RSPs attributable to ETS. Rather than -- unless you want me to look it up specifically here, I can tell you it makes no difference to me.

MS. SHERMAN: Why does it make no difference?

DR. HOLCOMB: Because the data is all so scattered. In one case, I can get a three-to-one ratio and in another one I can get a 30-to-one ratio. It's all over the place. And why? Because in every instance that you're associated with, there are differences in absorption and sinks for the nicotine that's in that air. Not only the nicotine but the respirable particulates, whether they're from ETS or from other sources.

So I've got all of these things going on. I've got things oxidizing, I've got particle sizes changing due to humidity and other influences. I've got the nicotine itself plating out or not plating out or being re-emitted after plating out on surfaces. And all of these things vary depending on the concentration of the material in the room, the humidity in the room, the temperature in the room, the number of people in the room. So when you have that much scattering of data, I don't think that you can use nicotine as a surrogate for respirable particulates, whether it's ETS alone or other sources.

MS. SHERMAN: My question was really far simpler than that. I just asked you if Eatough hadn't been referring to total RSP as opposed to ETS RSP.

DR. HOLCOMB: He may have been. I can check that quickly for you, if you like.

MS. SHERMAN: You can put it in a post-hearing comment.


MS. SHERMAN: That might be more expeditious.

In your dosimetric calculations on ETS in your docket submission, you rely on the mean value of environmental tobacco smoke reported in your review of the literature. Isn't it true that of 805 data points from 24 studies of RSP in smoking and non-smoking environments, approximately 75 percent are from Turner et al. of Healthy Buildings International?

DR. HOLCOMB: No. You're referring to offices and workplaces?


DR. HOLCOMB: Offices and public places?


JUDGE VITTONE: Are we looking for particular data or what?

MS. SHERMAN: I think he is.

DR. HOLCOMB: I'm just double-checking my table to see if the numbers you gave me were -- this is for respirable particulates?

MS. SHERMAN: I believe so.

DR. HOLCOMB: Okay. And your question was related to a number derived from that paper, a total number?

MS. SHERMAN: I said isn't it true that of the 805 data points from the 24 studies that approximately 75 percent of them are from Turner et al. of Healthy Buildings International?

DR. HOLCOMB: It looks like 585 of 805. I don't know if that's --

MS. SHERMAN: I think it's 73 percent if I round it up by 2 percentage points. You would agree with that.

DR. HOLCOMB: Yes, I would.

MS. SHERMAN: On page 27 of the comments you submitted you quote the fine print at the bottom of Table 2 in ASHRAE Standard 62-89 which states that the ventilation rates "have been chosen to control carbon dioxide and other contaminants with an adequate margin of safety and to account for health variations among people, varied activity levels and a moderate amount of activity." Is that not so?


MS. SHERMAN: Why did you quote this reference and not the forward of the standard which explicitly states, "Therefore, with respect to tobacco smoke and other contaminants the standard does not and cannot ensure the avoidance of all possible adverse health effects"?

DR. HOLCOMB: I don't know why I chose this except that it's part of the standard. It's in the standard. And, indeed, that's what they determined. The committee that worked on revision of Standard 62-1981 --

MS. SHERMAN: 62-81 or 62-89?

DR. HOLCOMB: Of 62-89 in the presence of 62-81 being on the books, they reviewed all of the available data, they've looked at Kane and Leaderer's studies or Leaderer and Kane's studies and they specifically said that varied activity levels including a moderate amount of smoking.

John Jansen, who was the chairman of that committee, knows exactly what they did and they included those studies knowing full well that they could at those levels accommodate a moderate amount of smoking.

MS. SHERMAN: Are you a member of ASHRAE?

DR. HOLCOMB: Yes, I am.

MS. SHERMAN: Do you have an official role in ASHRAE meetings?

DR. HOLCOMB: Yes, I do.

MS. SHERMAN: What is that?

DR. HOLCOMB: I'm a member of the physiology and human environment committee, a full member. I am a corresponding member of the particulate and particulate contaminant control committee. And I have been a observer, an active observer, I don't know if you'd call it consultant but certainly involved in the health and comfort subcommittee of the current revision of the standard.

MS. SHERMAN: Is the term observer, does that have a special meaning in the parlance of ASHRAE?

DR. HOLCOMB: They've called us a member of a subcommittee without any voting privileges but with input to the committee.

MS. SHERMAN: So that means you get to go to these meetings?

DR. HOLCOMB: No, it means that I get to sit there and discuss and cuss the goings on in that committee, make observations and make recommendations.

MS. SHERMAN: Are these committee meetings open to members of the public?

DR. HOLCOMB: They are, yes.

MS. SHERMAN: And can anybody participate in the discussion or must one be a member?

DR. HOLCOMB: That's a good question. I have seen times when the chair or the subcommittee chairman said, no, you can't participate and other times when they did let other members of the public participate.

MS. SHERMAN: So it's sort of at the discretion of the chair?


MS. SHERMAN: Does it have something to do with the amount of time allotted?

DR. HOLCOMB: Probably. I think at times there are things other than time that are considered.

MS. SHERMAN: Recent IAQ newsletters report friction at these ASHRAE meetings between "monied special interests" that follow the meetings and the needs of ASHRAE's constituency for a revised standard. Do you know what the nature of this controversy is?

DR. HOLCOMB: I read that comment and actually I think I had been sitting in the audience and there was an interesting exchange between other ASHRAE committee chairpersons and group leaders and members of the public that were at these meetings suggesting that the chairman, the chairman of the full committee, had excluded input in the past. And so there was a rather animated exchange between people at that meeting.

MS. SHERMAN: Are you familiar with the revised drafts of Standard 62-89 which are circulated among committee members?


MS. SHERMAN: Are you familiar with the section in the proposed revision of ASHRAE 62-89 titled "Principles of Source Management" where exhaust ventilation for spaces with strong contaminant sources is discussed?

DR. HOLCOMB: I believe so. I'm not sure that I've seen the most recent version. I know that there has been something like that.

MS. SHERMAN: This proposed revision considers ETS to be a strong contaminant source, doesn't it?

DR. HOLCOMB: I think it does but I can't be sure of that. This is a proposed draft that has not seen the light of day to the public yet.

MS. SHERMAN: But this proposed draft recommends exhausting strong contaminant sources to the outdoors, does it not?


MS. SHERMAN: Do you know why?

DR. HOLCOMB: Well, I'm not certain that I always know why and I'll give you an explanation of that. When a target concentration has not been put forth for ETS or for total volatile organic compounds or anything of that nature, a target concentration has not been set forth that has been through rigorous peer review, then I wonder where we're going. If they say just eliminate ETS because we looked at the EPA report and this is bad stuff for you, that's one thing. Another way is to try to document it for the ASHRAE members at large.

Another thing that they can say is if you just painted a room, if you've painted that room with XYZ type of paint and you know the emission factor for that paint in terms of volatile organic compounds and you tell me that you want to reduce that emission by directly exhausting that or not allowing anyone to come into that room until that paint has dried and been there for a week or whatever before people are exposed to it, then my first question is why are we doing that? Upon what basis do you make that conclusion? Do you have a target concentration, first of all, that you are trying to stop?

The same thing for a room where there are 10 copying machines. If I know that the VOCs in that room are 45,000 micrograms per cubic meter, I'm going to be the first to say put in a direct exhaust system or find some other way to take care of those pollutants.

But there are no target concentrations mentioned for ETS. There are no target concentrations mentioned for VOCs that are definable. And yet you have these sorts of things going on.

So I think what you've got is a bunch of language for proposed things that may or may not be accepted by ASHRAE or by ANSII after ASHRAE has accepted them.

MS. SHERMAN: Would it be fair to say that you don't really know why the proposal reads the way it does and, in any event, you don't agree with it?

DR. HOLCOMB: Well, no, that's not true. Not true at all. I think that I do know why some of the things are in there. I think that there are people that think that VOCs at any level are dangerous.

MS. SHERMAN: Well --

DR. HOLCOMB: And I think that there are people that think that ETS at any concentration is dangerous.

MS. SHERMAN: Is it fair to say you don't agree with this proposed revision?

DR. HOLCOMB: No, I'd have to look at every portion of that proposed revision and tell you what I think of it on a paragraph-by-paragraph basis.

MS. SHERMAN: Well, do you agree with the part of the revision that segregates ETS into a separate chapter and does not combine it with other contaminants?

DR. HOLCOMB: I don't know what the latest status on that is. I know there's been -- there was a meeting there this weekend in Dallas of that committee which I was not able to attend and I don't know what's happened to it. So I don't know that I agree or disagree with the current --

MS. SHERMAN: Because you don't know what the present status is.

DR. HOLCOMB: That's right.

MS. SHERMAN: Getting back to the present ASHRAE standard -- by the way, do you have any idea when this proposed revision will become a real revision?

DR. HOLCOMB: I would guess about 10 years from now.

MS. SHERMAN: So in other words we're going to have ASHRAE Standard 62-89 to kick around some more?

DR. HOLCOMB: I think that's right.

MS. SHERMAN: Are you aware that earlier at these hearings the ASHRAE spokesperson, Dr. Michael Hodgson, said in reference to Standard 62-89 that the standard was a comfort standard that aimed almost incidentally to provide health and safe working conditions?

DR. HOLCOMB: I'm not aware of that.

MS. SHERMAN: Would you agree that this ASHRAE statement of the comfort versus health controversy contradicts your interpretation of the ASHRAE standard?

DR. HOLCOMB: Not at all. I think that what you have alluded to, I have not read his statement, I'd have to put it in context of the full statement but I know full well I talk to as many ASHRAE members as Dr. Hodgson does and I think that they are satisfied that they have a good standard. That doesn't mean that it can be refined and made better but I think that they believe that it does address more than just comfort. And I can assure you I believe that. I've shown you repeatedly today what ventilation will do to contaminants regardless of the source in terms of dilution and removal.

MS. SHERMAN: From your knowledge of ASHRAE 62-89, does Table 2 in that ASHRAE standard offer a prescribed ventilation rate for smoking lounges?

DR. HOLCOMB: It does.

MS. SHERMAN: And what is the prescribed rate on a per person basis?

DR. HOLCOMB: I think that it's -- it's either 50 or 60 cfm per person.

MS. SHERMAN: If I told you it was 60, would you believe me?

DR. HOLCOMB: I've heard it discussed a lot of different ways. It is 60.

MS. SHERMAN: And what does Table 2 recommend regarding the source of this ventilation air?

DR. HOLCOMB: This is outdoor air.


DR. HOLCOMB: That assumes, by the way, I think it's very important to note that that assumes 70 persons per 1000 square feet of space in the smoking lounge.

MS. SHERMAN: How is this transfer air induced into the smoking lounge?

DR. HOLCOMB: It's generally -- it just makes common sense engineering-wise and indoor air quality-wise that if you're going to have a smoking lounge that you bring it in from either -- air directly from the outside or air that is coming from another part of the building where there is not smoking.

MS. SHERMAN: You'd use local mechanical exhaust?

DR. HOLCOMB: A local mechanical exhaust for exhausting?

MS. SHERMAN: No, for bringing it in.

DR. HOLCOMB: For bringing it in? No. No. I would just bring it in from a hallway, off --

MS. SHERMAN: How would you get it to come in?

DR. HOLCOMB: I would have a negative pressure in the smoking lounge itself in relationship to the remainder of the building, which would allow any air that's coming into that room not to exit that room unless it was pulled out with a direct fan or some kind of exhaust system. So you're having a positive pressure outside the room, negative pressure in that room in relationship to the rest of the building.

MS. SHERMAN: Does Table 2 further advise exhaust with no recirculation recommended?

DR. HOLCOMB: That's right. It does.

MS. SHERMAN: On page 25 of your submission, you reminded us that outside air entrained into a building will dilute all point sources, not just occupant generated contaminants such as odors and carbon dioxide. Isn't that true?

DR. HOLCOMB: That's true.

MS. SHERMAN: Are you inferring that cigarettes are a point source?

DR. HOLCOMB: Yes, I am.

MS. SHERMAN: Would you agree from an industrial hygiene or industrial ventilation perspective that a burning cigarette is a point source and not a diffuse source?

DR. HOLCOMB: I guess I'd have to go far beyond that. A cigarette is a point source certainly but if air is transferred from a room in which smoking is taking place and it's transferred throughout the HVAC system, then certainly it may become a diffuse source.

MS. SHERMAN: So it becomes a diffuse source after the HVAC system mixes it up, so to speak.

DR. HOLCOMB: Or it can become a diffuse source in the room itself if there is adequate mixing.

MS. SHERMAN: Okay. You co-authored a paper with Dr. Crawford on environmental tobacco smoke in airlines in 1991?

DR. HOLCOMB: I did. I don't recall the date but I did co-author a paper with Dr. Crawford.

MS. SHERMAN: And I believe it was published in some periodical called "Aviation Space and Environmental Medicine"?


MS. SHERMAN: I believe you concluded that separation of smokers meets the needs of passengers?

DR. HOLCOMB: I don't have the paper here but I believe that's what I concluded.

MS. SHERMAN: Did you look at flight attendants who had to work in the smoking section?

DR. HOLCOMB: Did I look at them? I always look at the flight attendants.


DR. HOLCOMB: No. No. I'm sorry. I did -- we did take that into consideration. Yes.

MS. SHERMAN: Did you evaluate their exposures?

DR. HOLCOMB: I don't recall. I think we did. What we assumed with regard to the flight attendant is that the flight attendant moves throughout the smoking and the non-smoking zone both. And it's been a while since I looked at that paper but, as I recall, I believe that we tried to give some time or duration of exposure for those flight attendants in the smoking and non-smoking sections. And knowing the concentration of exposure and, again, we calculated that and the respiration rate and the concentration and the retention efficiency of a non-smoker, we calculated a dose, as I recall.

MS. SHERMAN: Are you aware that reports by the National Research Council and the Department of Transportation have reached opposite conclusions concerning the flight attendants?

DR. HOLCOMB: Well, I don't know what -- I don't read everything that they put out but I don't know that they came to that conclusion. I know that DOT had a very large study done and if you look at the concentrations of exposure that they did, that they had for respirable particulates and smoking and carbon monoxide and all the things that we've looked at, nicotine, we used their data. They were one of the major sources of the data that we used to calculate dose. If I come to a different conclusion, I certainly think that I'm right if they said that there was an impact. I just can't see -- they weren't exposed to anything more than people are generally exposed to in offices and public places that we have all this information for.

MS. SHERMAN: Turning to slide 3 from your presentation today --

DR. HOLCOMB: I have it.

MS. SHERMAN: What is the source of your information on the males and the average time allocation as percent per day?

DR. HOLCOMB: I think I alluded earlier to the fact that we looked at several sources other than the CAPS study, an earlier CAPS study. One of them was from their data but we used several other sources in addition. And I know that we have them cited.

MS. SHERMAN: Could you tell me where you cited them?

DR. HOLCOMB: That's what I'm looking for and I don't find it immediately.


DR. HOLCOMB: I don't find it immediately but I know that we used -- there were either five or six studies that we used.

MS. SHERMAN: Could you make that available to me in a post-hearing comment?

DR. HOLCOMB: I sure can.

MS. SHERMAN: So would it be fair to say that these -- what do you call them, circle graphs, if you will, represent the universe of males and females?

DR. HOLCOMB: It represents the best one could do with the North American data on how people spend their time.

MS. SHERMAN: But what I mean is it is an average.


MS. SHERMAN: The reason I'm asking you this is that I know I spend more than 11.7 percent of my time working and yet your circle graph seems to indicate that women spend 11.7 percent of their time working.

DR. HOLCOMB: That's right.

MS. SHERMAN: So therefore this would include people with part-time jobs, et cetera?

DR. HOLCOMB: It includes the entire -- what we're trying to do here is give average amounts of time that people spend population-wide, everybody in the United States, regardless of whether they work or not.

MS. SHERMAN: And how is this relevant to the exposure of full-time employees to ETS in their workplace?

DR. HOLCOMB: It is relevant only in that if you go back to how we calculated exposure and we took it case by case, we took a male or female, their different respiration rates, the concentration of exposure, their retention efficiency was essentially the same, but the duration of exposure may be different.

We assumed when we took a workplace female, and I would go to Vu-Graph number 5 where we estimated the respirable particulate retained dose, we took a workplace male, for instance, take a non-work male who perhaps is exposed only in the home or other places outside of a workplace and the cigarette equivalent or dose per year, milligrams per year, is about 16.46. A non-work male who is exposed everywhere other than work, a non-work male. A workplace male had less but that was just at work and then the worst case male I showed you was a male exposed in a bar, in a smokey environment of a bar, lives with a spouse who smokes and is exposed in every other aspect of his life. And it's more but is it significantly more?

Sure it's more but it's small. If you take a very, very small amount and multiply it by two or three or four or five or ten, it's still small.

MS. SHERMAN: Well, now that we've turned to your slide 5, what were your assumptions in this table?

DR. HOLCOMB: Those are all given in the text of the paper, the multiplication of the time exposed. They're all in this paper.

MS. SHERMAN: Is this in your "Environment International" paper?

DR. HOLCOMB: Yes. The 1993 paper.

MS. SHERMAN: So all the assumptions that you made are in the paper.


MS. SHERMAN: And that's the source of all this data?


MS. SHERMAN: Is the worst case -- okay. You don't have a calculation for worst case workplace now.

DR. HOLCOMB: Yes. Well, the worst case male I can tell you is calculated in this paper, is the source, and it gives the exact calculation in there. As I told you. Works in a bar, lives with a spouse who smokes and is exposed in every other aspect of his life.

MS. SHERMAN: So it's your opinion that the highest exposed workplaces are bars?

DR. HOLCOMB: Or a discotheque. Something of that nature where there may be drinking and smoking both going on. Bowling alleys.

MS. SHERMAN: Bowling alleys are bad, too?

DR. HOLCOMB: Maybe. Maybe. Bars are notoriously underventilated.

MS. SHERMAN: Why do you suppose that is?

DR. HOLCOMB: I don't know why they are. Maybe people don't care.

MS. SHERMAN: Turning for a moment to slide 4, what is the source of this slide?

DR. HOLCOMB: That is also -- all of that data are the differences in the means that are in table 2 in the 1993 paper.

MS. SHERMAN: So if I look at the 1993 paper, I'll be able to understand how you got these numbers?

DR. HOLCOMB: Actually, it's Table 9.

MS. SHERMAN: Table 9?

DR. HOLCOMB: Table 9. Yes. The difference in the means in the last column in Table 9 of the 1993 paper are identical to these numbers.

MS. SHERMAN: And these represent the universe, correct?

DR. HOLCOMB: Well, the universe is the population of the United States.

MS. SHERMAN: That's what I meant.


MS. SHERMAN: Our universe. Now, is the solanosol data given in your 1993 paper? You'll have to refresh my memory.

DR. HOLCOMB: I believe most of it's respirable particulate. There is some that is UVPM data and I don't recall if some -- there may be solanosol derived data.

MS. SHERMAN: Would you have any solanosol data except what is reported in your 1993 article?


MS. SHERMAN: Would you submit that to us?

DR. HOLCOMB: It may be -- some of that may be in the submittal. I would have to look and see but I'll be glad to submit it to you. If I have extra that I have not submitted to you that I'm aware of, I'll be glad to submit it. When I mentioned the submittal, the appendix to my submittal may have some additional solanosol. I just don't recall. And that would be Table -- I believe Table 1 of the appendix.

Now, I look at that quickly, I don't see that there is any solanosol listed.

MS. SHERMAN: I don't either.

DR. HOLCOMB: There is some UVPM but I don't believe any -- no solanosol.

MS. SHERMAN: There's no necessary correlation between UVPMs and solanosol, is there?

DR. HOLCOMB: I am sure you could start playing around with the ratio but I haven't seen anybody -- I don't recall that anybody has done that. It would be pretty difficult to do that because UVPM may be influenced by combustion sources other than tobacco smoke.

MS. SHERMAN: I think you stated here today that you've never characterized environmental tobacco smoke in your investigations except for carbon dioxide measurements?

DR. HOLCOMB: I believe that's true. As far as I recall.

MS. SHERMAN: Then how are you representing the levels of nicotine, RSP and benzo(a)pyrene and nitrosamines that are found indoors?

DR. HOLCOMB: How am I characterizing them?

MS. SHERMAN: No, how re you representing them if you didn't take any measurements.

DR. HOLCOMB: Well, all I can depend on for them is the literature sources.

MS. SHERMAN: So then it has nothing to do with your personal experience.


MS. SHERMAN: Why didn't you monitor for any of these substances?

DR. HOLCOMB: Well, generally, first of all, the tobacco smoke was not thought to be a problem. If it was, in one case there was a man who happened to be the manager of the building and he had his own separate office and he smoked a cigar from time to time. He decided on his own that he was going to put a little direct exhaust system in. And in fact what that did was screw up the ventilation system for the whole building because he didn't balance other things but that's the only case I can recall -- he wanted to. There was really -- we never had anyone tell us that there was a problem there but he wanted to be sure he wasn't adversely affecting people.

MS. SHERMAN: Perhaps a good example of the adage "The road to Hell is paved with good intentions"?

DR. HOLCOMB: It may be.

MS. SHERMAN: How do you know when you look at a study whether the measurements in it are good or bad?

DR. HOLCOMB: From the literature?


DR. HOLCOMB: First of all, you try to see if the methodology section is -- you know, what do they tell you there? Do they really tell you how they did it? Usually, they don't, of course. They don't tell you everything. And then you need to know how they quantified that in the laboratory. It's nice to know if they used a reputable laboratory, one that you could depend on for good quality control.

The more numbers one would have the better, to be more representative of the population at large that you're trying to look at. And there are a variety of factors I look at.

Did it appear in a peer reviewed journal? That's nice, of course. There is data, of course, that if there's enough of it and you know who the people are and you know that they've used a good lab or you've used the laboratory before, you might depend on un-peer reviewed work but in general it's good to have it peer reviewed because someone has looked at that, they can ask those questions about the validity of the data.

MS. SHERMAN: Are you automatically suspicious when the methodology section is brief or non-existent?

DR. HOLCOMB: Well, I don't know if I'm suspicious. The more information, the better, but I don't know that I'm necessarily suspicious.

MS. SHERMAN: Did you make an independent judgement about the worth of the individual studies that you used to perform your calculations?

DR. HOLCOMB: We had a key set of criteria as outlined in the method. And if they met those criteria, then we accepted it.

MS. SHERMAN: Getting back to slide 6, could you explain, when you go to the third column over to something called real-life level, could you explain how you derived these numbers?

DR. HOLCOMB: These were numbers that we found in the literature, all the North American literature that we looked at.

MS. SHERMAN: Could you submit as a post-hearing comment the specific calculation you performed to derive these real-life numbers? I mean whether you weighted the studies or whether it was just an average or --

DR. HOLCOMB: Yes, we can do that. We did it, by the way, we did it by a weighted average.

MS. SHERMAN: Okay. I would like to see your methodology for that.



JUDGE VITTONE: Ms. Sherman, it's 20 after one. How much longer?

MS. SHERMAN: Excuse me?

JUDGE VITTONE: I said it's 20 after one. How much longer do you think you might be?

MS. SHERMAN: About 15 minutes.

JUDGE VITTONE: Okay. Let me just quickly ask here, who else has questions for this witness?

How long, Mr. Gross?

MR. GROSS: Ten or 15 minutes.


MR. McNEELY: [Inaudible comment.]

JUDGE VITTONE: Okay. Who else had questions?

Mr. Rupp, you have some follow-up, I assume?

MR. RUPP: Yes. [Inaudible comment.]

JUDGE VITTONE: Let's hold off on that for a second, okay?

Mr. Lowe?

MR. LOWE: Ten to 15 minutes.


You have about another 15?

Somebody else?

VOICE: I have approximately about an hour but I can try to pare it down a little bit.

JUDGE VITTONE: Well, you're going to have to pare it down a lot because we've got an airplane problem here, as I understand it. And I'm willing to keep him here and hold off until about 2:30 and skip lunch until that time but we are going to be running into a time problem.

All right. Let's finish up with Ms. Sherman, and if we can cut that down, I would appreciate it, and proceed to the other people.

MS. SHERMAN: Do you believe that 1000 or 2000 micrograms per cubic meter RSPs could not be seen in typical bars or discos?

DR. HOLCOMB: I believe you could find it under specialized circumstances if the ventilation was very poor and that there was a very high density of smoking. I have not seen those kinds of figures in the literature that we reviewed and I think we've looked at everything since 1980. That doesn't mean that those numbers can occur but I think it's unusual.

MS. SHERMAN: On slide 16, could you explain what these benchmarks are on the left-hand axis?

DR. HOLCOMB: Yes. What we did on slide 16, and by the way, I would refer you to the 1991 paper to look at it because it does --

MS. SHERMAN: Now, are we talking about the "Environment International" paper?

DR. HOLCOMB: No, 1991 by Holcomb and Pedely. I have a copy here for you, if you like.

MS. JANES: Is that the source?


MS. SHERMAN: Is that the source?


MS. SHERMAN: Have you submitted that paper to the record?

DR. HOLCOMB: I submitted it via citing it in my submittal.

MS. SHERMAN: You don't have a hard copy?

DR. HOLCOMB: I have a hard copy. I'll be glad to give you a copy today.

MS. SHERMAN: I would appreciate that.


DR. HOLCOMB: I'm sorry, did you have any additional questions? To explain that?


DR. HOLCOMB: That is explained in detail there. What we did was to assume that 13 different materials, including benzene and benzo(a)pyrene and respirable particulates, nicotine and so forth that one might find as part of sidestream smoke were additive in their adverse effects. But we also assume that biological materials like fungus spores could also be detrimental and we looked at the OSHA permissible exposure levels and there is none, of course, for biologicals but we made our own up. You can agree with it or disagree with it. We made our own permissible exposure level.

MS. SHERMAN: Oh. What did you make?

DR. HOLCOMB: Oh, I don't recall. I believe it was either 800 or 1000 cfus per cubic meter. I don't recall. But any rate, we could throw that one out if you like, if you're not comfortable with that one. But what we did was to then take all 13 of those and assume that because there were 13 we could only have one-thirteenth of each of those available.


DR. HOLCOMB: And so that's the OSHA benchmark level. We called it OSHA benchmark level in the left-hand bar graph.

MS. SHERMAN: But you have over 100 percent.


MS. SHERMAN: How can you have --

DR. HOLCOMB: We exceeded -- we just -- we exceeded what the air quality would have been acceptable, assuming that all of these were additive in their adverse impact. Which isn't true, of course. We were taking a worst case condition. And we assumed that they were all additive. And then we assumed in the smoking ban one that there was 5 cfm per person of outdoor air being supplied via the ventilation system and then we banned smoking and we left the ventilation at the same level and all pollutants were reduced by 5 percent overall. And then we improved the ventilation to 20 cfm and allowed smoking to continued at the same level and we had a 65 percent reduction.

MS. SHERMAN: Now, this slide 16 represents the whole universe of all workplaces in the United States?

DR. HOLCOMB: No, it doesn't because this paper although the numbers are not all that much different, this paper does not have all the data that we could have had if we had written it in 1993.

MS. SHERMAN: Well, as of the time that you wrote it, does it assume all the workplaces in the universe?

DR. HOLCOMB: It assumes representative workplaces. I don't know that we have covered everything in there.

MS. SHERMAN: And in your 1991 paper, do you detail what you feel is representative?

DR. HOLCOMB: Yes, we do.

MS. SHERMAN: Do you have any cost data on the middle column where smoking is banned?

DR. HOLCOMB: Cost data for what?

MS. SHERMAN: What it would cost to do it?


MS. SHERMAN: Yes, to ban smoking.

DR. HOLCOMB: To ban smoking?


DR. HOLCOMB: No. We didn't do any cost estimates of any kind.

MS. SHERMAN: So you also didn't do any cost estimates on what it would cost to provide improved ventilation which is represented by the third column.

DR. HOLCOMB: No, we've written another paper, though, that we've also referred to in our testimony that I'll be glad to give you a copy of.

MS. SHERMAN: And what might that be?

DR. HOLCOMB: Well, it's a paper by Holcomb and Pedely in 1994 that shows the -- let me give you the exact title here.

MS. SHERMAN: Do you have a copy of it with you?

DR. HOLCOMB: Yes, I do. I'll be glad to give you a copy. It's "Comparison of Employee Upper Respiratory Absenteeism Costs with Costs Associated with Improved Ventilation." And in that paper we have detailed the additional cost for both capital costs and for energy consumption for going from 5 to 20 cfm. In fact, 1 cfm at a time, if you like.

MS. SHERMAN: That sounds very interesting.

Turning to slide 14, I believe you indicated that you wouldn't wish to use cockerels in your oral discussion.


MS. SHERMAN: Why are you prejudiced against cockerels?

DR. HOLCOMB: Well, I think they're good to eat but I don't think they're any good for trying to decide whether or not there are adverse chemical effects on people. Cockerels are especially susceptible to some of these materials and they just in no way represent a mammalian population. I mean, chickens breathe differently. They have a different kind of respiratory system. They have air sacs clear down into their wings. You know, what can I tell you? They're just -- the concentration was too high to begin with but I just wouldn't use cockerels.

MS. SHERMAN: Wouldn't you agree, though, that cockerels are widely used in this sort of study?

DR. HOLCOMB: They're used for some studies and I think you have to be very careful about what you can determine from those studies.

MS. SHERMAN: What animal would you substitute for a cockerel?

DR. HOLCOMB: I'd rather use a mammal. I'd probably use a rat. If I was going to do a rat, I'd probably do a mouse, too, and I'd probably do a rabbit. I'd even do a beagle although I have a pet beagle so I maybe wouldn't use a beagle.

MS. SHERMAN: Are you familiar with the CIIT rat bioassay for formaldehyde?

DR. HOLCOMB: I can't say that I am. I don't recall it.

MS. SHERMAN: So you don't know whether you agree or disagree with the dosing pattern in that study?

DR. HOLCOMB: I don't know.

MS. SHERMAN: Isn't it common in terms of performing toxicological research to use high doses to be able to observe certain effects faster?

DR. HOLCOMB: Unfortunately, it is.

MS. SHERMAN: Do you disagree with the NTP protocols for carcinogenicity studies?

DR. HOLCOMB: I think that NTP is not satisfied with their protocol.

MS. SHERMAN: Well, I'm asking if you're satisfied with it.

DR. HOLCOMB: Well, I'm not satisfied with it nor do I think they are.

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


Let's see.

Mr. Gross.

Mr. McNeely, you have some questions.

Who is the other gentleman? Mr. Haviland?

And possibly Mr. Lowe and Mr. Rupp.

Okay. Let's take up the question with respect to whatever you're raising with respect to Mr. McNeely, Mr. Rupp.

Mr. McNeely, you might as well come down here. I think I'm going to want to hear from you.

MR. RUPP: Your Honor, Mr. McNeely indicated in response to your call for questions that he proposed to ask questions on behalf of the Association of Flight Attendants. I have no problem if he asks questions on behalf of the Association of Flight Attendants, assuming he's authorized to represent them in this proceeding and I take it he will make that representation, but what we would object to is questions beyond those that Ms. Sherman asked relating to airline smoking because there is a lawsuit pending in the state of California, a class action, it's now been certified as a class action, involving precisely that issue. Dr. Holcomb may or may not be a witness in that case.

OSHA on the other hand has no jurisdiction over air quality in airplanes so that while I have no problem at all with questions being asked of any aspect of the workplace over which OSHA has jurisdiction, and I would not think Dr. Holcomb would have any problem with those questions either, we would object to any use of this proceeding or any attempted use of this proceeding as a discovery vehicle outside of the Federal Rules of Civil Procedure in pending litigation in which Mr. McNeely or his associates are involved. That would not be appropriate and, in our view, would be a serious abuse of the process.


Mr. McNeely, can I hear from you?

MR. McNEELY: Certainly, Your Honor. And I think I can keep it very simple. My questions will relate to the rule and to those areas, workplaces, that OSHA has jurisdiction and that's all I plan to ask questions about.

JUDGE VITTONE: Are you involved in whatever this lawsuit is in California?

MR. McNEELY: No, I'm not.

JUDGE VITTONE: All right. When I say "you" I mean --

MR. McNEELY: Well, we have a large -- as far as -- I am involved -- I am an attorney involved with the Castano litigation class action in New Orleans. Now, there are approximately 60 law firms. Whether or not they're involved with the class action that was referred to by Mr. Rupp, I have no idea. There is no mission or purpose to conduct any discovery relative to that. My questions will be relative to this rule and the workplace that OSHA has jurisdiction.

JUDGE VITTONE: Okay. I assume you do represent the flight attendants, then?

MR. McNEELY: Yes. That's witness 171.

JUDGE VITTONE: Okay. Let's take a five-minute recess off the record.

JUDGE VITTONE: Nobody is here so you're up.

And since I think this is your first time, identify yourself and the persons you are representing.

MR. HAVILAND: Good afternoon, Dr. Holcomb. My name is Don Haviland and I am here on behalf of certain labor unions, health associations and ETS victims, particularly witness numbers 156, 14, 11 and 172, among others. And my law firm is also part of the plaintiffs' legal committee in the Castano litigation which is currently pending class action in which the class has not yet been certified.

I'm going to cut to the chase on a lot of these matters and I would just like to clear up a few things.

Your only advanced degree is in zoology, is that correct? From the University of Michigan?

DR. HOLCOMB: From Michigan State University.

MR. HAVILAND: Michigan State. I'm sorry.


MR. HAVILAND: You're not a medical doctor, epidemiologist, engineer or economist in any way?


MR. HAVILAND: You have no one at Holcomb Environmental that's qualified in any of those fields? Epidemiology, as an engineer?

DR. HOLCOMB: Well, I don't want to belabor a point but I did not claim to be an expert in epidemiology but for 30 years, in my professional career, I've reviewed epidemiology studies and I know what you can and can't do and I know what they are and I know what they represent. But I have never conducted an epidemiology study.

MR. HAVILAND: Okay. That's fine. You've already acknowledged in your written statement and in your verbal comments your affiliation with the Tobacco Institute. I'd just like to clear it up. It's safe to say you're here on a client matter and you've been paid, your expenses have been paid as well as your additional fee for appearing today. Is that correct?

DR. HOLCOMB: That's right.

MR. HAVILAND: And you arrived at what time? Monday, I guess it was, here?

DR. HOLCOMB: I've been here -- I came here Monday to observe. Yes.

MR. HAVILAND: And did you prepare for your oral testimony today?


MR. HAVILAND: On what different occasions have you prepared for this testimony? Did you prepare in Michigan or did you wait until you came here?

DR. HOLCOMB: Well, I guess I -- that's a very broad question. I've been preparing my whole life.

MR. HAVILAND: Basically have you had an opportunity to prepare when you came to Washington with Mr. Rupp and others from the Tobacco Institute?

DR. HOLCOMB: I didn't prepare anything with Mr. Rupp. I talked to one of his colleagues, just briefly, at Covington & Burling.

MR. HAVILAND: As far as your written statement that was submitted on August 11th, can you tell me when you were first asked by the Tobacco Institute to prepare that?

DR. HOLCOMB: It was after the proposed rule was published but I don't recall exactly when.

MR. HAVILAND: Could it have been the spring of '94 possibly? It was submitted on August 11th.

DR. HOLCOMB: I'm just not certain. It could have been in July, it could have been in June.

MR. HAVILAND: Did that written statement go through a number of drafts? Are you aware?

DR. HOLCOMB: No, it pretty much was organized by us. When I say "us" I mean Holcomb Environmental. And I don't recall a lot of drafts. No.

MR. HAVILAND: I've gotten a list of your publications and I've basically gone back to about 1988 and at some point I will list them but can you tell me when your affiliation with the Tobacco Institute or any other tobacco entity first started?

DR. HOLCOMB: In 1987.

MR. HAVILAND: In 1987? Okay. So they've been your client since that time to the present? Is that correct?

DR. HOLCOMB: Well, we've consulted for them on indoor air quality from time to time since then.

MR. HAVILAND: In various different matters.


MR. HAVILAND: I've gotten five different publications you've listed as part of your supplemental bibliography that you've submitted in addition to your response and there's already been discussed the airline article, which I'm not going to get into because my law firm is not involved in that litigation. Other than some critical letters and the studies that are cited in your bibliography, do any other studies or reports that you've prepared come to mind on behalf of the Tobacco Institute or any other tobacco entity?

DR. HOLCOMB: I don't recall. I just don't know. I'd have to review everything you've got and what I've done. I don't recall.

MR. HAVILAND: I'd like to get into, I think, a theme that's established itself here. It's what I like to call the real world because I think that's what you have conveyed to the panel today, what is the real world, and I'd like to get to the crux of the matter and that is you've discounted a number of studies throughout this entire written statement and I haven't really found one that you're totally in support of. And each time you discount a study, you've made some remark to the real world or real life or actual or normal conditions and I notice that there's a preponderance of footnotes or citations to your own studies. And I guess the golden question is what is the real world? Is it the real world as Dr. Holcomb puts it or what is the real world?

DR. HOLCOMB: Well, let me try to define it for you. When I see a variety of literature that says that people are getting sick, they're getting lung cancer, they claim causal effects of ETS on lung cancer or respiratory diseases, my first question as an environmental toxicologist is to say does this make any sense, what is the biological plausibility of that and what concentrations of exposure are actually going on out there compared to what might actually cause a disease to occur or at least to show some kind of association with disease.

So I go back to the literature. I didn't exclude any study that had any merit to it. Certainly not on purpose. And I would be glad to include, if someone should find a study that met our criteria for including in what we call real life exposures, if someone could find -- I'd be glad to recalculate our figures. But we did that. We went to all the North American indoor air quality data since 1980. And why did we have that as a cutoff point? Because there had been a previous study done by Sterling & Associates that had kind of compiled material up until that time. And, secondarily, the studies that had been done since 1980 are more up-to-date, using better refined equipment and lab technology and we had no reason to disbelieve that if we looked at all that, put it all together, that we could not come up with real life concentrations and I think we have.

These are not according to Dr. Holcomb. These are according to what's there in the literature.

MR. HAVILAND: Let me get to what some of your criteria were, then. Is it in your view more important to have a volume of studies as opposed to what I'll just call good studies, not wanting to get into definitions, better studies? Or would it be more important to you to have more studies or better studies?

DR. HOLCOMB: Well, sir, you're going to have to define better studies. I think I am perfectly capable of deciding whether or not a study is good. Good enough at least to include in a battery of studies. And I would like to have more, we'd all like to have more. We'd all like to have what we call better in quotes. But I think that if you have a lot of across the board studies from various parts of the country, done by a whole lot of different investigators, their lab analysis done by a whole lot of different qualified laboratories, that you're going to get a good indicator of what is truly out there.

MR. HAVILAND: I noticed that in one instance you've characterized the Repace and Lowery study as being misrepresentative of real life and later on you reference that study, as far as OSHA has looked to some of the studies that they reference as real world calculations and representative but at one point, and it's around page seven that the problem comes up, is that you've looked at some 25 studies whereas OSHA has only looked at about 11 so that's where I have a problem with is it a question of volume or is it a question of what is representative?

DR. HOLCOMB: Well, I think as I said before you'd like both. It would be nice to have lots of them and have them all be truly representative. But my fault with the Repace and Lowery study, first of all, it's an older study and that doesn't mean that they don't have some valid measurements in their study but it is not representative of real life conditions today. It just isn't. And if you compare those numbers, they are an order of magnitude higher than what we find in real life exposures.

And that's what OSHA is using as what they think is representative. They're using something in excess of 200 micrograms per cubic meter due to environmental tobacco smoke exposure for respirable particulates when in fact it's not -- the exposures in the workplace are not even close to that in terms of average exposure.

So if you're going to do a risk analysis based on those figures, you're going to be way off. And that's why I say that Repace and Lowery never did anything that was worthwhile but you go back and look at it as it represents what today's values are and they're not representative at all.

MR. HAVILAND: So I guess that answer, it kind of answers my question that the real world is more representative in your study, in your opinion, is that correct?

DR. HOLCOMB: Absolutely.

MR. HAVILAND: All right. I think I'll get to the real solution here, the meat and potatoes, is what is the real world solution to the real world problems we've been discussing here and, as I understand it, your recommendation of the ASHRAE Standard 62-1989, I understand that and you've written that dilution is the best you can hope for.

DR. HOLCOMB: Not at all.

MR. HAVILAND: The ASHRAE standard.

DR. HOLCOMB: Not at all. Ventilation in my mind includes a whole lot of things. It includes outdoor air ventilation. If you're in downtown Los Angeles on a particular kind of day, you're going to say I don't want to bring in all that smog, ozone and all those respirable particulates. So what do you do? ASHRAE tells you what to do. You can't bring it in there and use it unless it meets a certain standard. It has to meet --

MR. HAVILAND: The outside air does.

DR. HOLCOMB: Right. And so what do you do it? You filter it as it comes in. Secondly, when you get it in, inside the building there are very few places that don't filter air inside the building. Recirculated air is filtered. Respirable particulates are taken out to some degree, maybe 50 percent, maybe 10 percent, depending on the quality of the filter. You've got recirculating air to be filtered not only for particulates but for organic compounds. So that -- I mean, that's ventilation. It doesn't exclude -- if you have a particularly strong source, and I talked about some of those, if you have a smoking lounge, if you have a room full of copying machines, if you have a room full of people who want to sit down and paint their fingernails, exhaust it to the outside. If you have a bathroom, you exhaust it to the outside. It's particularly the kind of stronger odor problem, perhaps, that you take care of in a specific way. But for general purposes, dilution and together, if necessary, with filtration does take -- we have the evidence, the evidence is very straightforward. It does take care of the problem, if indeed there is a problem.

MR. HAVILAND: Well, given your comments there, then you would agree with at least the part of the regulation that deals with aspects of separate ventilation, is that correct? Containment into a separate area and then ventilation to the outside?

DR. HOLCOMB: That's a policy choice. If somebody wants to ban smoking in their own private building, that's their choice. They can do it. If they want to have a smoking lounge, there are all kinds of ways that they can have a nice smoking lounge. The literature is replete showing how to do it and that it's successful.

MR. HAVILAND: You would agree that at least in some circumstances, then, that it is helpful to do that, then.

DR. HOLCOMB: I agree that that's the choice of the people doing it. My main theme, though, is this, and I don't want it to be mistaken, that if you have the smoking rates that we have today in the United States population, around 25 percent, in most workplaces it's not 25 percent, it's around 20 percent or less, that those people are not smoking more than one and a half cigarettes per hour and indeed the smoking data shows it's around 1.21 cigarettes per hour, you have that kind of concentration, you have seven and a half people per thousand square feet floor space, you could take care of it with 20 cfm. You can take care of it with less than 20 cfm if you have the right kind of filtration. So you don't have to have smoking lounges to take care of comfort and health of the people involved in that situation. That's a policy decision for every person whether they own or manage a building.

MR. HAVILAND: Okay. I would just like to -- you would agree with me at least insofar as the ASHRAE standard you propose is not a health based standard, it's not designed to control the constituents of ETS to any acceptable levels? Would you agree with me that far?

DR. HOLCOMB: No, I don't.

MR. HAVILAND: All right. I'll leave that to your own decision, then. Let me ask you then, in another area of your paper you claim, "It's true that not all buildings meet the ASHRAE standard." That's a curious way of saying that. Would you at least give me that some buildings meet the ASHRAE standard currently?

DR. HOLCOMB: Yes, they certainly do.

MR. HAVILAND: Do you have any idea, any figures as far as a national percentage of how many buildings are currently meeting the ASHRAE standard as opposed to those that aren't?

DR. HOLCOMB: I believe that probably 40 or 50 percent meet the 62-89 right now. At least.

MR. HAVILAND: In the second to the last line of your written comment, you -- I'll just read it for you. "The agency must be willing to apply the most efficient and cost effective solution to the potential problem." Cost effectiveness. You agree that that's a substantial consideration in this entire matter?

DR. HOLCOMB: Yes, I do.

MR. HAVILAND: Do you stand by that position today, that the OSHA should consider all aspects of cost effectiveness?

DR. HOLCOMB: Yes, I do.

MR. HAVILAND: Especially in the real world, with real world calculations. Have you performed any cost benefit studies yourself?

DR. HOLCOMB: Yes, I have.

MR. HAVILAND: That's the Pedely study that you've cited at the end of your paper?


MR. HAVILAND: Nothing beyond that, though?

DR. HOLCOMB: Well, let me explain briefly. The figures that we used there are dependent on figures that were calculated for DOE under contract, I believe, with the Lawrence -- I think Lawrence Berkley lab but I could be mistaken. But we have all the citations in there. We have simply given those values. We think -- beyond those values, since we began putting that paper together, there have been even more technologies that have been put together that would allow one depending on the situation to renovate a building or to build a new building that meets ASHRAE specifications without a lot of cost increase.

MR. HAVILAND: That Pedely paper was given as part of an AWMA meeting? Is that correct?

DR. HOLCOMB: No, this was given at an ASHRAE symposium.

MR. HAVILAND: That's the ASHRAE reference? Can you tell me what the AWMA stands for?

DR. HOLCOMB: Air Waste Management Association.

MR. HAVILAND: Are you a member of that group?

DR. HOLCOMB: Yes, I am.

MR. HAVILAND: Is that group funded by the Tobacco Institute or any tobacco entity, to your knowledge?

DR. HOLCOMB: Not to my knowledge.

MR. HAVILAND: Are they members of that organization?

DR. HOLCOMB: I don't know.

MR. HAVILAND: How long have you been a member of that organization?

DR. HOLCOMB: Oh, eight or nine years.

MR. HAVILAND: Two of the four studies you cite in the final part of your written comments are based on papers that were presented at that meeting, is that correct?

DR. HOLCOMB: I believe so. Yes.

MR. HAVILAND: And beyond that you cite to Holcomb 1993, the study you performed?


MR. HAVILAND: And they're the basis for your determinations as to cost effectiveness and your assessment that the ventilation standard proposed by ASHRAE would be adequate to meet the needs? Is that correct? You've relied upon these four studies. That's what I'm asking.

DR. HOLCOMB: Oh. No. No. No. I relied on a lot more than that.

MR. HAVILAND: Well, you have your four Holcomb citations. That's what I'm asking you. That's correct?


MR. HAVILAND: In your final section of your paper, I'm not going to retrace the steps with you, you cite to -- there's four studies, actually there's two at the AWMA and then the 1993 study with the supplemental portion that you've attached but beyond that there's no other studies that you've relied upon?

DR. HOLCOMB: Well, I believe I referred to a '94 study by Holcomb and Seabrook?

MR. HAVILAND: Yes. That's the other one.


MR. HAVILAND: We've already discussed the Pedely study and then your '93 --

DR. HOLCOMB: I have another one that has a whole lot more data that I think will be coming out this month.

MR. HAVILAND: That's not in the paper?

DR. HOLCOMB: No, it's by Holcomb and Seabrook, though, which is an expansion on the health effects of volatile organic compounds.

MR. HAVILAND: Let me just ask you a hypothetical. Maybe I can wrap this up. In a room full of ten people, how many would you say would be likely smokers? In your --

DR. HOLCOMB: Oh, if you base it on the population at large, probably two.

MR. HAVILAND: Two. Is it possible for there to be more than two, maybe four, five?

DR. HOLCOMB: Oh, it's very possible. Yes. It's possible. It could be none.

MR. HAVILAND: It could also be 10, correct?

DR. HOLCOMB: Well, if it's a smoking lounge, it could be.

MR. HAVILAND: Of the smokers, then, how many cigarettes do you think they would be smoking within an hour?

DR. HOLCOMB: We used one and a half for our calculations but I believe it's a little lower than that now on a national basis.

MR. HAVILAND: Is it's possible they could be smoking two, maybe even more?

DR. HOLCOMB: They could smoke two but generally, you know, with smoking going down, smoking rates going down, I think it would be rare that it would be more than two.

MR. HAVILAND: Let's assume of the Kane study which you've cited as poor, they use the figure two. If we were to take the figure two and possibly four people which is the calculation they based that on, they say that it would take at least 53 cfm to adequately ventilate that area. Is that correct? You've cited that study and I know you've done a recalculation back down to 20 cfm and that's how you arrived at your figure, is that right?

DR. HOLCOMB: I'm trying to recall. I think you're right on what they suggested would be the required ventilation rate. They were in here, I believe, basing it on 40 percent smokers and I believe it was two cigarettes an hour but I'm not sure of that. If it was, are they -- and they were looking at eye and upper respiratory irritation. Did it require 53 cfm, did they calculate right? I think they're not far off.

If you go back through the curves that they generated and the figures in their papers, there were a series of papers there, I think that they're a little high on the cfm required, even at those rates, generation rates.

MR. HAVILAND: Let me just get back to one final point here about the cost. I didn't find any costing studies in your paper that dealt with what it would cost on a nationwide basis to implement the ASHRAE standard. Are there any studies that I'm not aware of that should have been in the bibliography? Apparently there were none.

DR. HOLCOMB: In the OSHA bibliography?

MR. HAVILAND: No, in your written comments. As far as the cost of implementation.

DR. HOLCOMB: I don't know. If you look at the papers that we cited, and the one in particular by Eatough and Myer, they had a follow-up paper, too, on HVAC costs of fresh air ventilation. If you talk to them today, they generally come to the same conclusion, that the numbers that they calculated were adequate, that they could vary, they certainly do vary by location, geographic location, some places far less cost than others depending on whether they're in a humid climate or a cold climate. There have been some studies done by NEMI, at least they were funded through NEMI, I believe, by researchers in the state of Wisconsin and I've looked at those studies but I cannot recall the exact numbers of the cost of implementing the ASHRAE standard or the benefits. They also calculated what they concluded to be the benefits. And I can't tell you that, you know, that I agree with everything that they had in there because there was a lot of information but I think they're on the right track, that they have bracketed the costs and they have bracketed the benefits to be derived in terms of reduced absenteeism due to health problems and that sort of thing.

MR. HAVILAND: Are you aware of the 1985 Repace and Lowery study that put the figure at approximately $30,000 per smoker? And that's in terms of 1984 dollars.

DR. HOLCOMB: I think I've read that. I discounted that right away. I don't think it is at all representative.

MR. HAVILAND: Thank you. I appreciate your time.

JUDGE VITTONE: Thank you, Mr. Haviland.

Mr. McNeely?

MR. McNEELY: Hello again. I have already introduced myself. I think you know who I represent.


MR. McNEELY: You woke me up when you said that you can decide what is a good report for purposes of reliance and that particularly -- was I correct in hearing or my understanding that you did not perform any ETS measurements in any of your building or office evaluations?

DR. HOLCOMB: I believe that in offices where there was smoking that we looked -- we did measure carbon monoxide. We tried to measure carbon monoxide. That's the only thing.

MR. McNEELY: And I was very interested in your attempting to construct a real world exposure to I guess ETS. One of the studies that you used was the Turner et al. study.


MR. McNEELY: I'm just wondering, how did you appreciate or your criteria with regard to evaluating that particular study to make it even worthy of mentioning or even using it in any of your papers?

DR. HOLCOMB: Well, we evaluated it exactly the same way as we did any other study.

MR. McNEELY: Would you elucidate?

DR. HOLCOMB: We have the method set forth, as I suggested to you, in that paper, exactly how we decided to take a paper into consideration. And they're all listed under the method section. As far as I know, we didn't deviate from that with the exception that we included -- we wanted it to be a North American study, 1980 or later, we looked at -- we knew what we were looking for, we wanted to look at respirable particulates or carbon monoxide and other items, about six items all together. And we looked at whether or not -- if we could tell whether it was taken in a home or in a workplace or office or like environment or a restaurant or a bar or tavern or on public transportation. If no mean was given, generally the data were not reported unless there were individual values that were there from which we could calculate the mean. If there were 10 or more samples and a median was given but no mean, we used that median value. Both the arithmetic and geometric means are reported. If the arithmetic mean was given, we used that one rather than -- in any subsequent averaging of the data. And we go on to give other -- if only one value was given for the paper, we didn't use it because we didn't think it was representative of conditions and different points in time.

MR. McNEELY: How about the methodology of the samplings or the evaluations? Were you familiar particularly with the Turner et al. and the Healthy Buildings International methodology in taking their samples? Were you familiar with Healthy Buildings International?

DR. HOLCOMB: They gave, I believe, in their method section, the way that they calculated it.

MR. McNEELY: Did you know Simon Turner or Gray Robertson?

DR. HOLCOMB: I know them, yes.

MR. McNEELY: Have you worked with them?


MR. McNEELY: Have you compared methodology? Do you know how they actually do their tests by speaking with them or going with them on any of their --

DR. HOLCOMB: I have not. No. But they do give the methodology here and I did report it.

MR. McNEELY: And, as a matter of fact, you relied heavily on it, as I understood, from the line of questioning, 73 percent on that one particular table or study, you used 73 percent of their readings. Is that correct?

DR. HOLCOMB: We used all the readings that they recorded.

MR. McNEELY: But comparatively speaking with the other reports.

DR. HOLCOMB: I understand from the calculations that that represents about 73 percent of the respirable particulate data.

Now, I think the important thing -- let me stop you for just a moment. An important thing to take into consideration here, is that representative? Is that comparable with the other data that we evaluated? Did they have real high numbers, did they have real numbers, what was their median, what was their mean? Compared to the other studies that we looked at, they were the same. It's not disparate.

MR. McNEELY: So if those studies or their numbers were bogus or they had been diminished to reduce the effect of ETS in all of those environments, that would not -- you would not be interested in calculating or considering that in your papers?

DR. HOLCOMB: I have no reason to believe that that took place.

MR. McNEELY: Did you also in your acquaintance with Mr. Turner and Robertson, did you also meet a Mr. Jeffrey Seckler?

DR. HOLCOMB: I have met Mr. Seckler.

MR. McNEELY: Okay. And you've met him at your different symposium and that type of indoor air quality discussions?

DR. HOLCOMB: As I recall, I guess I can't recall everywhere. I know I saw him at an industrial health meeting in New Orleans a year or two ago. I believe I met him one time when we were testifying at a hearing in California.

MR. McNEELY: Well, that kind of leads to another subject. You've testified on behalf of the Tobacco Institute before regulatory hearings in different state and federal forums?

DR. HOLCOMB: I did at that hearing, as did Mr. Seckler.

MR. McNEELY: And the subject was regulation of smoking in the public sector?

DR. HOLCOMB: Yes, it was. But my subject was looking at environmental tobacco smoke and indoor air quality.

MR. McNEELY: You had mentioned with reference to various symposium that you have either participated in as a presenter, I believe I heard you say you even conducted some symposium, is that correct?

DR. HOLCOMB: I've conducted different kinds of programs in the ASHRAE, their forums and their -- the word escapes me. Their symposia. But I've contributed to those.

MR. McNEELY: And in those times, was there any time that you were not there sponsored by the Tobacco Institute?

DR. HOLCOMB: Oh, absolutely.

MR. McNEELY: Were there any times that you were sponsored by the Tobacco Institute?

DR. HOLCOMB: I really don't know. I know there were times when I was not but I don't recall for those whether I was or was not. It wouldn't surprise me if I was, okay? But I'm not sure that I was.

MR. McNEELY: Well, the heart of, of course, all of this discussion is the health and safety of the workers in the workplace, you understand that?


MR. McNEELY: Wouldn't you agree that smoking is a non-work activity?

DR. HOLCOMB: I don't have any reason to agree or disagree with that.

MR. McNEELY: Well, can you think of any job that requires or inherently requires smoking in part of the performance, and I'm not talking about the birds or the rats or those kind of creatures but the human kind.

DR. HOLCOMB: No, I can't.

MR. McNEELY: And you are, I'm sure, very familiar with the proposed rule with regard to tobacco smoke as far as the regulation.


MR. McNEELY: The OSHA regulation.

DR. HOLCOMB: Yes, I am.

MR. McNEELY: Okay. And I thought that you, when I was listening to your testimony, as far as the concept of having a designated smoking area, a smoking room or a designated area that was maintained under negative pressure, am I correct in understanding that you thought that that was an acceptable, reasonable way to set up a smoking area?

DR. HOLCOMB: That's one way to do it.

MR. McNEELY: Okay. And also would that include venting, a separate ventilation or separate venting system to the outside? Would you think that's reasonable?

DR. HOLCOMB: It could. That's one possible way. I think it's not necessary in most cases but that's one way of doing it.

MR. McNEELY: Okay. I know that you're familiar with -- do you take any issue with the list of constituent elements and chemicals in the Table 3-6 in the vapor phase and particulate phase that are listed in the OSHA preamble? Are you familiar with those?

DR. HOLCOMB: Yes, I am. You're referring to sidestream or mainstream smoke?

MR. McNEELY: Well, I'm referring to both. I mean, I understand that there perhaps may be some variance and I think the note some of the -- it might be totally similar but do you have any dispute or disagreement that these are the constituents of tobacco smoke and with their related health effects?

DR. HOLCOMB: Well, I can't comment on all health effects. If they're there. But I have no reason to disbelieve that those materials that they have published there are not in concentrated mainstream or concentrated fresh sidestream.

MR. McNEELY: Well, Doctor, would you agree that it certainly would be appropriate for OSHA to regulate ETS in the workplace along reasonable -- taking the reasonable measures such as limiting smoking in the workplace to a designated area maintained under negative pressure vented to the outside, wouldn't you agree that that is reasonable if the medical weight of authority says that ETS is in fact hazardous to the workers in the American workplace?

DR. HOLCOMB: But in fact it's not justified. You've heard me testify today and I'm telling you that there is no reason for them to do that. If they had a justifiable reason, if they could show that the exposure levels were at the levels where all these high concentration tests have been done and they could show a causal effect of some adverse effects happening, I would say they would have a very good -- but they've proven nothing in that regard. So there is no reason to do what they're doing.

MR. McNEELY: And I prefaced my question if by the weight of the medical authority, the medical science community, is that it is hazardous and it is a danger to the workers of America, then you would agree that at least what they are proposing as a regulation is reasonable.

DR. HOLCOMB: I'm not going to agree to that statement at all. There is no evidence that it occurs. And I'm not going to suppose that it occurs without good evidence that it does.

MR. McNEELY: Okay. And I thought I heard your qualification but you're not a medical doctor, are you?

DR. HOLCOMB: No, I am not.

MR. McNEELY: Okay.


MR. McNEELY: Did you ever publish in the Healthy Building International magazine?

DR. HOLCOMB: I don't believe so.

JUDGE VITTONE: Mr. McNeely, are you about done?

MR. McNEELY: Yes. I'm finished.


MR. GROSS: Thank you, Your Honor.

Dr. Holcomb, I'm Richard Gross from the National Energy Management Institute and the Sheet Metal Workers International Association.

I'm just going to make it real quick because a number of my questions have already been asked.

You referred earlier to the Mendel 1993 paper with respect to air volumes and its effect on symptoms in sick buildings. I recalled from a paper by Menzies earlier this year -- are you familiar with that paper? I think it was published in "The Journal of the American Medical Association"?

DR. HOLCOMB: To be frank with you, I wish I had it here in front of me. I don't know that I do. I know there was a paper by Menzies and I know that there was a paper by Mendel and I don't want to get them confused. I believe I remember the paper by Menzies.

MR. GROSS: Okay. Well, I was going to ask you if you could repeat the findings, if you're clear on it. I don't want you to state something that you're uncertain about.

DR. HOLCOMB: Well, there may have been more than one paper by Menzies, too, but I believe the paper that you're referring to looked at the incidence of sick building type syndrome at ventilation rates exceeding 20 cubic feet per minute per person and they suggested that if they went upward from 20 to, say, 30 or 40 or 50, that they were not getting any decrease in symptoms. And they claimed that this showed that ventilation rate didn't have any effect.

Well, I'm not sure that's what they claimed but that's --

MR. GROSS: That's the reason I recall it, because it was cited on a number of occasions.

DR. HOLCOMB: Right. Well, I think what happened, they may or may not have claimed that but I certainly don't think they made much of a case for it. What some people tried to make a case for was, hey, ventilation doesn't decrease the possible impact of pollutants in indoor air and symptoms don't decrease but in fact that's a very poor study to substantiate that. What they should have done was backed down from 20 cfm, see whether or not there were symptom increases below 20 cfm, what was it if there was no fresh air supply, what was it at 5 cfm, what was it at 10, what was it at 15, and what was it at 20.

Now, what I did tell you was that Mendel and his associates did a much more detailed look at sick building syndrome. They looked at all sick building syndrome studies where they could look at ventilation rates, too. What they found was that there was a decrease, a strong association, a significant decrease in sick building symptom syndrome once you got at 20 cubic feet per minute or more. Below 20 cfm, there was no -- you couldn't see any effect in there, that there was no -- that there could be some sick building syndrome symptoms below 20. Once you got at 20 or above, there was a definite decrease, a significant decrease.

MR. GROSS: Do you find those studies in the Mendel paper supportive of the conclusion that you reached, I think, in your testimony?


MR. GROSS: That ventilation at the ASHRAE standard --

DR. HOLCOMB: I do. I do. I don't take it alone, I looked at what I found, I look at what other people, other investigators have reported, I look at the concentration values. I look at the sick building syndrome data. And in that regard, it is supportive of what I'm saying.

MR. GROSS: Thank you. One other question.

In your remarks earlier, you mentioned new technology that was available for HVAC systems. We've heard some stories throughout these proceedings about how VAV systems sometimes just shut off and there are serious consequences of that. Could you tell me what specific technological developments you were referring to and specifically any that relate to VAV systems?

DR. HOLCOMB: Variable air volume systems can be God-awful if they are not designed properly. If they are just dependent on temperature for shutting off or humidity, that's not enough. There are today, though, on the market, and this is a rapidly expanding technology, but it's there today, you have all kinds of different types of HVAC systems that can be developed, the units can be developed on a floor-by-floor basis or for the whole building. You have demand control for ventilation and filtration, if you want, recirculation of air based on census. The sensory devices for carbon dioxide. I wouldn't use carbon dioxide alone unless I was assured that the occupancy was right for it. At least you calibrate it according to the occupancy you're going to have.

You can have sensing devices based on temperature, combination of temperature and C02. It can be on organic gasses alone in the atmosphere. So there are a variety of ways that this can be done so that a variable air volume system does supply sufficient fresh air to provide for health and comfort.

MR. GROSS: Can existing systems be retrofitted with these sensing devices?

DR. HOLCOMB: They can be. Absolutely. They can be. There was a paper given by several people at the last indoor air quality meeting in St. Louis, ASHRAE Indoor Air Quality '94, at least one paper, I believe there were two. There was one on CO2 alone as a VAV system monitor. And these all indicate that you can indeed control fresh air volume and good ambient indoor air quality.

MR. GROSS: Any information that you know of that exists about the cost of retrofitting existing systems with these types of devices?

DR. HOLCOMB: At least one of those papers that I mentioned, the one with the CO2 sensing devices, did give some economic data and I'm not sure about the second. But they are both in the published version.

There is, by the way, in our paper by Holcomb and Pedely 1994 published this year, it does show the values for capital costs, per foot squared values for capital costs and for energy consumption based on geographic location and it gives the benefits that might be derived from such installation.

MR. GROSS: Do you know if that study is actually in the record or have you submitted it?

DR. HOLCOMB: I don't know that -- I don't believe it was in the record before but it's one that Ms. Sherman had asked for today and I have it here for her.

MR. GROSS: Thank you, Dr. Holcomb.

JUDGE VITTONE: Thank you, Mr. Gross.

I've got 2:29. Mr. Lowe, I don't think it's worthwhile. If you have some questions you would like to submit in writing, you may do that.

Mr. Rupp, we are at 2:30. As I understand it because of his airline, we're through.

Doctor, I want to thank you very much. I appreciate your time today.

MS. SHERMAN: Your Honor, I believe we have to submit the slides and the two articles.

JUDGE VITTONE: I've got them. I've got the slides.

MS. SHERMAN: How about the two articles?

DR. HOLCOMB: I have them right here for you.

JUDGE VITTONE: Okay. Those are the only two things besides his slides and his presentation, right?

MS. SHERMAN: I believe those were the only two things that Dr. Holcomb had with him today.

(The documents referred to were marked for identification as Exhibits No. 218 and 219, and were received in evidence.)


MS. SHERMAN: Is that not so?


JUDGE VITTONE: Doctor, thank you very much for your time. I appreciate it.

JUDGE VITTONE: Ladies and gentlemen, it's 2:30. We have to be back at 3:30 for the gentleman from Price Waterhouse.

We are in lunch recess right now.

3:35 p.m.

JUDGE VITTONE: Back on the record.

MS. SHERMAN: Your Honor, could I make an announcement?


MS. SHERMAN: During the lunch break, I received a fax from the Vermont Restaurant Association, I believe, and they asked to be rescheduled. My understanding is they have agreed to come on the 20th instead of the 13th as they had been scheduled to do.

JUDGE VITTONE: January 20th?


JUDGE VITTONE: A week from this Friday.


JUDGE VITTONE: It might be a busy day.

Okay, so the Vermont Business and Restaurant Coalition will be rescheduled until January 20th.

We have back today the representative of the Price Waterhouse, Mr. Galfond, who was here earlier in October, October 24th, and submitted the paper that he had prepared on behalf of the San Francisco Hotel Association.

I understand I did not mark this at the time for identification, but the report will be identified as Exhibit No. 220, and the title is "Potential Impact of A Nationwide Workplace Smoking Ban on International Travel to the United States," dated October 24, 1994.

(The document referred to was marked for identification as Exhibit No. 220, and was received in evidence.)

Sir, would you state your full name again for the record, please, and identify the gentleman who's accompanying you.

MR. GALFOND: My name is Glen, and this is Jay Tansing.

JUDGE VITTONE: Okay. We'll begin with Ms. Sherman.

MS. SHERMAN: Thank you for returning. Twice.

MR. GALFOND: Thanks for the rescheduling.

MS. SHERMAN: What prompted you to conduct the survey?

MR. GALFOND: We were contacted by the San Francisco Hotel Association who asked us if we would do it.

MS. SHERMAN: What role, I'm sorry I didn't review the entire transcript. Can you review with me the role you played and the role Mr. Tansing played in this?

MR. GALFOND: I headed up the project. Jay worked on it day to day, made some of the phone calls for the survey, things like that.

MS. SHERMAN: Was the survey done entirely in response to the OSHA proposal on indoor air quality?

MR. GALFOND: If you're asking me why the Hotel Association did it, I don't know. I assume that it's related to that, whether it's entirely that, I do not know.

MS. SHERMAN: On page three you stated that you asked respondents to assume that a ban would prohibit smoking in all enclosed workplaces in the United States. You then go on to acknowledge that the proposed OSHA regulations have a provision that would allow for smoking in separately ventilated lounges, and you stated that, "Therefore, the opinions of our respondents might not directly reflect on the impact of the final OSHA regulations." Is that true?

MR. GALFOND: That's true.

MS. SHERMAN: Would the way you asked the question tend to increase the magnitude of your estimate of any potential adverse effects on business of the OSHA regulations, or decrease the magnitude?

MR. GALFOND: You'd think it would increase it, assuming the regulations were less stringent.

MS. SHERMAN: How large a bias in your results might have been created in the way you asked the question?

MR. GALFOND: It's difficult to answer that in the same way it's difficult to ask the question to respondents what would happen with these regulations. The reason we framed the question this way is to give them some concrete framework to answer it. If we were to say, "Describe over any period of time during the interview how the regulations will look," and of course they've changed and could change over time, it's just hard to convey to them what's the framework you've got to answer the question from. So how stringent will the regulations be relative to a complete ban? I don't know. We couldn't communicate that to the respondents. That's why we picked a simple framework they could understand.

MS. SHERMAN: I believe that at least one domestic airline operating in an international market has ended smoking on international flights. Do you know whether this airline experienced any change in business after this decision?

MR. GALFOND: No, I don't.

MS. SHERMAN: You didn't look at this in your study?

MR. GALFOND: No, I think it's pretty clear what we looked at here.

MS. SHERMAN: I think on page five of your report you said that you hadn't attempted to forecast the impact of a nationwide workplace smoking ban on international travel, but you're presenting the results of the opinion survey to present the expectations of members of the travel industry. That's correct?

MR. GALFOND: If you'd like me to check the wording... That sounds right. I don't know if that's exactly what it said, but...

MR. TANSING: That's right.

MR. GALFOND: He's quicker than I am.

MS. SHERMAN: Would it be fair to say that you don't know what effect a nationwide workplace smoking ban would have on international travel?

MR. GALFOND: It would be fair to say that we don't know exactly what effect. Our purpose here was not to quantify exactly the impact, but to give you some reasonable range of values, some estimate to ball park what the impact would be.

MS. SHERMAN: Isn't it really an estimate of what the travel agents think the impact will be?

MR. GALFOND: Of course.

MS. SHERMAN: When foreign visitors come to the United States, do they fly on domestic airlines within the United States?

MR. GALFOND: You're saying traveling within the U.S.?


MR. GALFOND: I assume so. I'm not an expert on foreign visitors' travel patterns, though.

MS. SHERMAN: Would you know what percentage of time the average foreign traveler spends on U.S. domestic airlines traveling between cities?

MR. GALFOND: No, I would be happy to tell you about what's in here, but I'm not an expert on that area.

MS. SHERMAN: I believe that U.S. domestic airlines have been smoke-free for the last few years. Do you have any evidence that the level of foreign travel on U.S. domestic airlines has changed in any way because, in any way after the airlines became smoke-free?

MR. GALFOND: No, this is a study about a survey of travel agents, not a study of airline travel data.

MS. SHERMAN: Did you ask your respondents about the frequency of travel?


MS. SHERMAN: And what did they say? Were most of the trips that they booked multiple trips...

MR. GALFOND: Maybe I misunderstood your question. By frequency of travel, we asked that relative to what would be the impact of the smoking ban on frequency of travel.

If you turn to the appendix, you can see exactly the questions we asked.

MS. SHERMAN: Can you refer me to a specific question?

MR. GALFOND: I'm sorry. A specific question for?

MS. SHERMAN: You asked me to look at the appendix. Where are we looking?

MS. SHERMAN: It starts on page 15 and we can go through question by question, but I think the one you're looking for starts on six.

MR. TANSING: What we asked of the travel agencies related to what you're saying, but not exactly, it started on question three which is on page 16.

MR. GALFOND: Frequency, that's more revenues...

MR. TANSING: That's what we asked them.

MS. SHERMAN: So you really didn't ask a frequency question in the sense that I meant?

MR. GALFOND: How many repeat visitors they have?



MS. SHERMAN: Do you know how many travel agencies in the United States go out of business every year?

MR. GALFOND: I have absolutely no idea.

MS. SHERMAN: What empirical evidence do you have that travel agents are good estimators of economic impact of any government policy?

MR. GALFOND: I general?


MR. GALFOND: None. It's a survey of people's opinions.

MS. SHERMAN: Do you have any information that the travel agents that you surveyed knew what percentage of their customers smoked?

MR. GALFOND: We asked them what percentage smoked.

MS. SHERMAN: Do you know on what they were basing this information?

MR. GALFOND: Based on their knowledge of their customers.

MR. TANSING: On question five we asked them, for example, to base it on whether they prefer accommodations that allow smoking. Request for hotel rooms and airline seats that allow smoking. That's a for example.

MS. SHERMAN: In other words, since these things were... It might be that this could result perhaps in a slight under-estimation of smokers if the smokers did not request special accommodations?

MR. GALFOND: That's possible.

MS. SHERMAN: What percentage of the people who responded to question five said that they didn't know?

MR. GALFOND: I don't know that off the top of my head, but I could get it for you.

MS. SHERMAN: Thank you.

MR. GALFOND: You don't know it off the top of your head, do you?

MR. TANSING: No, but... I don't know.

MS. SHERMAN: You didn't ask respondents whether smoking was a factor in determining location or site for travel, did you?


MS. SHERMAN: Many tourist attractions in the U.S. such as museums and zoos and Disneyland are smoke-free already. Do you know how international tourists tolerate such areas now?

MR. GALFOND: I have not studied that issue.

MS. SHERMAN: I think you mentioned on page one that a significant percentage of foreign visitors smoked. Do you have any basis for this statement other than question five of your survey?

MR. GALFOND: I know we do, but I can't recall what it is. But there are studies of...

MS. SHERMAN: Could you provide that?


MS. SHERMAN: Do you have the smoking rates for other countries?


MS. SHERMAN: Do you have the smoking rates for the eight foreign countries that you list on page ten that you used in your sample?

MR. GALFOND: No. Excuse me a minute, but maybe I haven't presented what this report is about or my qualifications. I'm not an expert on smoking. I'm an expert on surveys. If it relates to the survey, I can answer the question. If it relates to how many smokers are there in the U.S. or each of eight foreign countries or other similar questions, I just won't be able to help you.

MS. SHERMAN: I believe that in your discussion of your survey you made extensive use of information published by USTTA, is that correct?

MR. GALFOND: We made use of the list of travel agents and tour operations.

MR. TANSING: That was from AST...

MR. GALFOND: I'm sorry. You're right. Yes we did, we used their financial estimates.

MR. TANSING: I don't think USTTA has any information on incidents of smoking in other countries.

MS. SHERMAN: No, but you used USTTA data for other purposes in this report, did you not?


MS. SHERMAN: Could you submit the USTTA documents that you used to our record?


MR. GALFOND: I believe we cited them, as well, in the report.

MS. SHERMAN: Excuse me?

MR. GALFOND: I believe we referenced them in the report as well.


I think you said in 1993 there were 46 million foreign visitors traveling to the U.S. What's the source of this data?


MR. TANSING: We cite it in the footnote.

MS. SHERMAN: Do you know how that estimate was derived?


MR. TANSING: It was derived from their in-flight survey of international visitors, I believe. It's also derived from Statistics Canada on travelers coming across the border from Canada, as well as, I believe it's the Bureau of Economic Analysis, U.S. Department of Commerce, from people coming across the border from Mexico.

MS. SHERMAN: Will the document that you submit, will it sort of lay it out, where they go that from?


MS. SHERMAN: Do you happen to remember what percentage of this reflects travelers from Canada or from Mexico that are coming into the United States? Is it broken down like that?

MR. TANSING: It is broken down like that. I think we broke it down, we looked at expenditures and the number of visitors tracked that pretty carefully, but we can submit that information.


Do you know what percentage of these numbers represents business travel versus pleasure travel?

MR. TANSING: No, we did not examine that.

MS. SHERMAN: Has the USTTA examined that?

MR. TANSING: I believe they have, yes.

MS. SHERMAN: Do you think that will be in the document you submit to us?


MS. SHERMAN: Don't you think that for the purpose of your study it would be important to know the purpose of the trip? By that I mean whether it's a vacation or whether it's business.

MR. GALFOND: Why is that?

MS. SHERMAN: Well...

MR. GALFOND: In the sense that people would be less likely to cancel a business trip?

MS. SHERMAN: I guess that vacations are considered more discretionary than business.

MR. GALFOND: We have the travel agents' opinions of what would happen based on their understanding of their customers, so I would assume that that would factor into their response. If they had all business travelers that wouldn't cancel their trip, they would be less likely to say there would be a decrease. If they had more vacation travelers, they might be more likely to...

MS. SHERMAN: But you didn't ask them for a breakdown of business versus vacation.

MR. GALFOND: Correct.

MS. SHERMAN: That information might be available merely by the agents examining their billing data, correct

MR. GALFOND: I don't know what kind of records they keep. You would assume often it would be available, but I could have a travel agent that I deal with through work and use them also for my personal trips, so I'm not sure how comprehensive that would be.

MS. SHERMAN: But when you do a personal trip, you don't bill it to Price Waterhouse, do you?

MR. GALFOND: Actually, we use a travel agency, so I don't bill it to Price Waterhouse, but it would come to my address and come for me, and... Actually it would be billed to me because we just bill our credit cards. So if I leave the country the firm isn't left with a bill. I'm still stuck with it.

MS. SHERMAN: So it's billed to your credit card rather than Price Waterhouse's credit card?


MS. SHERMAN: It would be a good deal the other way, wouldn't it?

I think on page one of the executive summary you mentioned that travel expenditures by foreign visitors accounted for nine percent of all U.S. exports of goods and services. Is that true?


MR. GALFOND: It sounds about right.

MS. SHERMAN: What is the source of that statement?

MR. TANSING: Department of Commerce data.

MS. SHERMAN: Is that, again, the US...

MR. TANSING: We can submit that.

MS. SHERMAN: When a foreign traveler pays for hotel accommodations or buys a carton of cigarettes in the U.S., are these considered goods and services that are consumed locally, or are they considered exports?

MR. TANSING: If an international visitor comes into this country and buys goods in this country, it's considered an export.

MS. SHERMAN: Even though the good is being sold here?

MR. TANSING: It's considered an export because if the international visitor did not come into this country, that purchase may not have been made. It's considered an export because it's made outside of the United States by a foreign, to a foreign visitor.

MR. GALFOND: If the question is relative to this nine percent figure, the answer is yes. It's considered an export.

MS. SHERMAN: It was more of a general question.

MR. TANSING: When a foreign visitor comes into this country and dines in say a restaurant, that restaurant meal is considered an export. That is included in our travel expenditures.

MS. SHERMAN: Who considers it an export? Is this an accounting practice or is this what the Treasury Department does?

MR. TANSING: It's included in the exports from the Department of Commerce data, which makes up the GNP.

MS. SHERMAN: The same for a hotel room that is occupied by a foreign visitor?


MS. SHERMAN: Is this the USTTA again, or is it some other branch of the Commerce Department?

MR. TANSING: That estimates that?

MS. SHERMAN: That attributes this to export.

MR. TANSING: That's the Department of Commerce. That's not USTTA. They just look at the travel figures, from what I understand.

MS. SHERMAN: Is this another Commerce Department document?

MR. TANSING: Yes. And again, if you'd like me to submit that, I can submit to you the figures of how they break down exports.

MS. SHERMAN: Yes, I'd appreciate that.

MS. SHERMAN: I guess you also said that the growth in expenditures on U.S. goods and services by foreign visitors might slow in the next few years.

MR. GALFOND: That was based on Department of Commerce.

MS. SHERMAN: Do you happen to know if the anticipated decline is due primarily to an anticipated decline in business travel, or in pleasure travel?

MR. GALFOND: I don't know.

MR. TANSING: There are several factors, and we don't know the interaction among them, and we don't know exactly what all encompasses why they think that. We do have a paragraph here on a couple of the reasons why they determined that it could slow.

MS. SHERMAN: That's on page two?

MR. TANSING: Page seven. The last paragraph.

MS. SHERMAN: Do you know if the Commerce Department has any models that make these predictions?

MR. TANSING: Yes, it's the Travel Economic Impact Model that they have used.

MS. SHERMAN: Do you know whether these models separate out business travel from pleasure travel?

MR. TANSING: I could check on that and I could also submit to you the document that we worked from.

MS. SHERMAN: I'd appreciate that.

Did Price Waterhouse develop the survey instrument and methodology for this study?


MS. SHERMAN: When was the survey instrument developed?

MR. GALFOND: We went to the field in August and September, I believe, so it was shortly before that.

MS. SHERMAN: Do you have a company procedure for reviewing survey documents and reports?


MS. SHERMAN: What is it?

MR. GALFOND: In terms of the procedures, typically in this case we would have discussions with the client as to what it is they're trying to accomplish, we would draft the survey instrument, and it would go through a couple of levels of review within Price Waterhouse by survey experts.

MS. SHERMAN: In other words a client comes to you and says what they want to study, and then you figure out to best study it? Or do they direct you as to what they specifically want studied? In other words, did you derive the idea to survey travel agents, or did that come from your client, which I believe is the San Francisco Restaurant Association?

MR. GALFOND: They came to us with the general framework. We'd like to do a study, a survey of travel agents, on this topic.

MS. SHERMAN: After you completed your work,do you put your report through the same review process?


MS. SHERMAN: What are the credentials of the people in your office who developed the survey instrument?

MR. GALFOND: There are several people involved. Jay played a large role in it, and he has a background experience in survey research but is not a survey expert.

Don DeLuka who is a senior manager on my staff also had a heavy role in the review process. He has a doctorate in sociology, about 25 years in survey research. He headed up Yale's Roper Survey Research Center. He was a vice president with the Gallup organization, and he head sup our survey research center.

MS. SHERMAN: Your survey research operation is run out of your Washington office?

MR. GALFOND: That's correct.

MS. SHERMAN: What was the training of those who conducted the survey?

MR. GALFOND: In terms of the interviewers? In terms of the...

MS. SHERMAN: The interviewers.

MR. GALFOND: For this survey, we have several different kinds of interviewers. We have out in Bethesda, so when I say Washington, perhaps I'm...

MS. SHERMAN: The metropolitan area.

MR. GALFOND: A telephone interview room with a bunch of interviewers. We have people on staff as well that are experienced in more executive type interviewing. It was more the latter, the people here downtown did the interviewing, so they all had experience with surveys, they all were trained extensively for this survey, probably about a four hour session on the purposes and how to do it. They were all supervised when they're making their calls to make sure they're asking the questions exactly as worded.

I'm not sure if that answers your question, but...

MS. SHERMAN: Were these people Price Waterhouse employees, or was it a contractor who...

MR. GALFOND: Price Waterhouse employees.

MS. SHERMAN: Was there any room in the survey for people to call back and supply the information if they didn't have it immediately?

MR. GALFOND: Yes. This is a telephone survey.

MS. SHERMAN: I understand that.

MR. GALFOND: So if they didn't have it, we would leave them a number and they could call us back, and if they didn't call us back, we would call them back.

MS. SHERMAN: Did, in fact, most of the phone calls end with people getting back to people? In other words, how many, what percentage of respondents were able to give you all the information at the first crack?

MR. GALFOND: I don't know that exact answer. It's most. You made many of the calls yourself, Jay, so you could probably give her a better...

MR. TANSING: A lot did, but a lot, we would have to call back at a better time. They're busy during the day, so a lot of times we had to make an appointment to call them back. I don't know exactly what percentage.

MR. GALFOND: You were asking more about a break-off part way through the questionnaire, and gee, I don't know the answer, let me get back to you.

MS. SHERMAN: It would seem to me that this could be expected.

MR. TANSING: I don't think that any of them, during the middle, maybe not any of them, but I would say very few would have been broken off during the middle of the survey.

MS. SHERMAN: At what point did your clients review the documents? I assume that they saw the survey before you executed it.


MS. SHERMAN: Did they have input into it?

MR. GALFOND: They had some comments.

MS. SHERMAN: How did it change?

MR. GALFOND: I don't recall it changing very much. Jay, do you remember any specific...

MR. TANSING: Very little Very little.

MS. SHERMAN: But you don't remember how?

MR. TANSING: It did not change the substance on the survey. We developed it.

MS. SHERMAN: When was the next time they saw the results?

MR. GALFOND: It was in a draft report.

MR. TANSING: Maybe not for another month. Something like that.

Are you saying by the last time they saw the survey to the...

MS. SHERMAN: I said the next time. They may have seen it numerous other times, I don't know.

MR. TANSING: I would say about a month.

MS. SHERMAN: Did they see it before the interviewing was over?


MS. SHERMAN: Is there any protocol that you have that would have prevented them from seeing it before it was over?

MR. GALFOND: Security are you saying, or just...

MS. SHERMAN: Just internal rules or guidelines of Price Waterhouse.

MR. GALFOND: Often, in this case they didn't, but often clients are interested in halfway through, how many completes do we have, what does the answer look like? So I don't think we have a specific protocol that would say you can't get interim results. In this case we didn't do that, but I don't think there's anything wrong with that.

MS. SHERMAN: When you selected your subjects, how did you identify those agencies that were internationally active in the association? I think that's the ASTA, is it?


MS. SHERMAN: Or appeared to market their services to foreign visitors. I think that's what you said your criteria was.

MR. GALFOND: It was largely a judgment based on the listing. What we were trying to do is avoid calling lots and lots of travel agents who had no foreign clients.

MS. SHERMAN: This was an advertising listing?

MR. GALFOND: It's not really...

MR. TANSING: Membership directory.

MR. GALFOND: It's not really an advertising listing.

MS. SHERMAN: What would distinguish one travel agency from another then, in the listing besides the name...

MR. TANSING: We can submit the directory to you.

MS. SHERMAN: Well, I guess I'm more concerned with what criteria you used. What was your decision process in deciding on travel agency A versus travel agency B.

MR. TANSING: For a lot of the locations that we surveyed, we surveyed every single listing they had.

MS. SHERMAN: I guess I didn't understand your...

MR. TANSING: The way the membership directory is sorted, it's sorted by city within the U.S. and then it's sorted by country. So in some of the countries, for example, we called every single agency.

MS. SHERMAN: Do you remember how many establishments were listed in the directory?

MR. TANSING: I can't tell you an exact number, but...

MR. GALFOND: It's in the thousands.

MS. SHERMAN: Give or take a thousand, could you tell me?

MR. TANSING: I'd have to make a guess, 2,000. But again, I could submit the document to you. I think that would better answer your question.

MS. SHERMAN: But I still don't quite understand, and maybe it will become instantly clear to me when I see the document. But if it looks like a phone book, and by that I mean a white pages as opposed to a yellow pages that have display ads, you chose approximately 600 out of perhaps 2,000, perhaps 10,000. I'm not sure how many are in it. Why did you choose one person rather than another? Especially amongst the domestic travel agencies?

MR. TANSING: Amongst the domestic travel agencies, a lot of them, it was obvious that they marketed their services to international visitors by the name of it.

MS. SHERMAN: By the name of it.

MR. TANSING: Yes. Also there was an indication, I believe it was a small triangle, whether they were internationally active in the organization, and we called those as well.

MS. SHERMAN: I think you also stated that you selected foreign travel agencies and tour operators in countries with the highest travel expenditures in the United States. That's correct?


MS. SHERMAN: What was your source for this information?

MR. TANSING: The same source.



MS. SHERMAN: ASTA, okay. We have lots of acronyms.

The ASTA has this information on travel expenditures?

MR. TANSING: No, I'm sorry. We selected the travel agencies that we called from the ASTA that were in foreign countries. But you're saying the expenditures in...


MR. TANSING: ...visitors from the foreign countries. Yes, that came from the USTTA.

MS. SHERMAN: That's in one of the documents you'll be submitting to us?

MR. TANSING: Yes. I'm sorry, I did not understand your question.

MS. SHERMAN: Do you have the breakdown of the foreign respondents by country?

MR. GALFOND: In other words how many responded from each country?


MR. GALFOND: I don't have it handy, but we do have it.

MS. SHERMAN: Will you submit that?

MR. TANSING: We have those. But we did not separate them for the report.

MS. SHERMAN: But you do have that information?

MR. GALFOND: We have it in aggregate.

MR. TANSING: I forget exactly what we're talking about, how many were domestic and how many were international?

MS. SHERMAN: I guess I was more interested in a breakdown by country because I believe you said something about 92 being foreign and 500 and some odd being domestic.

MR. TANSING: If you're asking if we could aggregate the results for each country that we called --

MS. SHERMAN: Well, actually, I think I was asking for a disaggregation.

MR. GALFOND: How many agents and tour operators from Australia versus Canada.



MR. GALFOND: That's easy.

MS. SHERMAN: And also do you have any figures for how many were called in each country versus how many responded?

MR. GALFOND: Yes. We have that.

MS. SHERMAN: Do you have a breakdown of the domestic respondents by city?


MS. SHERMAN: And could you provide that?

MR. GALFOND: It might be easier if we just gave you the database of all that information.

MS. SHERMAN: That would be fine. That would be fine.

MR. GALFOND: And what's in there is the identity of the -- you know, in terms of the domestic versus foreign and what city of the respondent and then all the questions you see in the appendix on the survey.

MS. SHERMAN: So then we would be able to if we were to look at Figure 5, we would be able to tell whether the respondent was a domestic or a foreign agency?


MS. SHERMAN: If you would be willing to make that available, I think it would be useful to us.

How many of your 300 respondents provided only partial answers?

MR. GALFOND: I don't know that off the top of my head. It wasn't zero. It wasn't a lot. Meaning not answering a question.

MS. SHERMAN: Excuse me. I didn't hear your response.

MR. GALFOND: I said I don't know that. I mean, the database will tell you. I don't know off the top of my head.

MS. SHERMAN: Well, many of these questions can be answered if we can get your original database.

MR. GALFOND: What kind of software do you use, just to make life easy?

MS. COLLIA: Anything you want.

MR. GALFOND: Okay. Either SAS or spreadsheet or D-base or whatever?

MS. COLLIA: SAS is fine.


MS. SHERMAN: You're both talking a foreign language. I'll assume there is a meeting of the minds here.

Okay. You will provide something in some computer language that our computer understands.


MS. SHERMAN: And it will be your raw data from the study.



MS. SHERMAN: During earlier parts of this hearing we've heard a lot about potential bias in questionnaires. Why didn't you ask questions which more accurately reflected the OSHA proposal?

MR. GALFOND: It was mainly an issue of making it simple for the respondent to answer the question. There's a tradeoff. If we were to describe the proposed regulations, there are some uncertainties as to exactly where and how often there would be problems with foreign visitors not being able to smoke where they wanted to so it was a tradeoff. We could try and present it accurately, the situation, but it would greatly complicate it and it would frankly be hard to communicate anyway. We thought if we picked a simple framework we can intellectually think about what that might be but at least we can get the respondents a clear question they can answer.

MR. TANSING: And as I recall the regulations are many pages long.

MS. SHERMAN: That's true.

MR. TANSING: And I don't think we were clear on what the final regulations would be.

MS. SHERMAN: However, of course, the part that relates to smoking is very short, indeed.

MR. TANSING: That we asked?

MS. SHERMAN: No. The part of our proposed regulation that relates to the actual regulatory provision is very short.

MR. TANSING: Well, the regulatory provisions may be clear but the impact of them is not clear in terms of -- you know, if I require a separately ventilated smoking area, well, how many restaurants and how many hotels and who's going to implement it and who isn't. That's what we meant by unclear.

MS. SHERMAN: So your estimates are basically as you said at the beginning of this based on a survey of travel agents' opinions of the potential impact of the OSHA proposal. Do you have any empirical evidence that travel agents can accurately provide such information?

MR. GALFOND: Whether their opinions about their clientele are accurate?


MR. GALFOND: None beyond the common sense answer that they have a good idea about their clients but certainly it's not a perfect idea and certainly it's subject to error.

MS. SHERMAN: In the ASTA documents that you looked at, was there any listing for how long each establishment had been in business?

MR. TANSING: There may be and if there's not they may know.

MS. SHERMAN: Did that enter into your selection criteria at all?


MS. SHERMAN: I don't have any more questions but I am looking forward to getting that data so that we can look further into it rather than question your memory on some of these things.

I think that Ms. Collia has a couple of questions.

MS. COLLIA: I just have a couple of questions on your sample selection methods.

Can you tell me, why did you choose the ASTA membership directory as your sampling frame? I know, and I'm sure you do, too, that there are several other sampling frames you could have chosen for this survey. Were there any particular reasons you chose this one?

MR. GALFOND: Convenience, is an easy answer.

MR. TANSING: Well, convenience and it was an undated membership list. There are other sources that we can draw on for travel agencies and tour operators. For instance, by SIC code. But sometimes those databases are not up to date and accurate and a membership list from an organization that serves the travel industry would have probably up-to-date information.

MS. COLLIA: Are you saying that the sampling frame that the Bureau of Labor Statistics is using for their index is not as accurate as the one you used?

MR. GALFOND: No, I don't have access to that sampling frame.

MR. TANSING: We're not saying that at all.

MR. GALFOND: And also I don't believe it has foreign travel agents.

MS. COLLIA: Yes, it does.

MR. GALFOND: Does it? I don't know.

MS. COLLIA: And, yes, you do have access to it because they purchase it like anybody else can purchase it so it's not information that you can't access.

I guess I was wondering about that because some of the other databases that are available are far larger than the one you used and therefore probably more comprehensive and there are several ones that very aggressively update the entries in eh database so that they continuously exclude out-of-scope, out-of-business, so they are in some ways more accurate than the one you used. And, again, I am just wondering why this one versus --

MR. TANSING: Accurate in what sense?

MS. COLLIA: In the sense that they include a better picture of the universe of travel agents and tour operators because they are more comprehensive and they are more accurate in the sense that they exclude establishments that go out of business. And so you're sampling for a more accurate --

MR. GALFOND: Yes, I'm sure there are better lists. Our purpose was not to pick a statistically random sample from a comprehensive listing of the frame or the population, I should say. Rather, it was to somewhat by convenience, to be more economical, get a list and pick a sample that would have a high incidence of foreign customers.

What we're looking for here is an order of magnitude estimate to help you understand is the impact 100 million, is it a billion, is 10 billion or 100 billion but not precisely 3.9 billion. So when I interpret this, I would interpret it more from the point of view of an indication. It's in the single digit billions, it's not 100 billion or 10 billion, it's not 100 million. But not trying to read to too much into it.

MS. COLLIA: So if I understand you correctly, you are saying you're not making a staement that the sampling frame you chose, in your opinion, was the best representative of the travel agent population?

MR. GALFOND: No, I'm not trying to say that at all. Nor am I trying to say the sample was a perfectly random sample, either.

MS. COLLIA: Can you tell me how the sample was selected? Was it... Did you in any way make an attempt to construct a sample proportional to some variable factor in your sampling frame? Such as did you try to select a sample proportional to say the size of the agencies, the travel agencies?

MR. GALFOND: We didn't know how big the travel agencies were, so in terms of trying to get it representative by size...

MS. COLLIA: So you did not have that information prior to selecting a sample.

After you selected the sample, you did ask the question about the size.


MS. COLLIA: So that's not information you had prior to selecting the sample.

MR. GALFOND: That's correct.

MS. COLLIA: What did you do? Did you just go through the list and start calling, and once you had enough, or assuming you had decided that you needed 300 for the study, so once you reached that number you stopped calling? How exactly did you select your sample?

MR. TANSING: For one thing, where we called, I guess, was important, and I think that's what you were getting to before on how we drew the sample. We selected travel agents to call in cities that had the highest incidents of foreign visitors coming in and the highest expenditures by foreign visitors.

MS. COLLIA: Where did you get that information from?


MS. COLLIA: Okay, so you selected based on information from USTTA, you constructed a list of cities and a list of countries that you were going to select your sample from?


MS. COLLIA: Then what did you do? Did you pick the first ten from that city in the directory, or did you randomly select the ten from that city? How did you pick?

MR. TANSING: We used different criteria. We went through to see if the name of the travel agent, I guess somehow led us to believe that they would serve foreign visitors. Something like Japan Tour Unlimited, it may have been in Chicago. That was a good indication that they would serve Japanese visitors coming in. In some of those cases they did not. They only served Japanese visitors going out of the country and we did not include those in the survey.

MR. GALFOND: That was after the screening.


MS. COLLIA: How did you decide on the number 300 for your study? Was that decided prior to beginning your sample selection?


MS. COLLIA: And what was the deciding factor to come up with that number? Was it cost? Was it any other...

MR. GALFOND: It's a balance between cost and sample size. Obviously, the smaller your sample the less the cost. So if you just focused on cost you could take it down to one, but 300 seemed like a good enough number to get representation from the different countries and the different cities.

MR. TANSING: In the time we had to do it.

MS. COLLIA: Did you have any information on say expected variability of responses that upi may have included...

MR. GALFOND: No. Did we estimated the variance or did a sample size calculation to get to the precision we wanted? No.



Who has questions?

Your name? I'm sorry.

MR. SANDMAN: Richard Sandman.


Mr. Rupp. Anybody else?

How long, sir?

MR. SANDMAN: Probably about 30 minutes, Your Honor. No more than that.

JUDGE VITTONE: Okay, you're up first, I guess.

MR. SANDMAN: My name is Richard Sandman. I'm here representing various organizations including the American Medical Association. I can give you the names or the numbers. I'll give you the numbers.

JUDGE VITTONE: That's fine.

MR. SANDMAN: That's number two. Various ETS victims, 156; number 14 and number 11; witnesses 20 and 23; witness 171; witness 24; witness 10; and witness 172. In addition to being here on behalf of these organizations, I am also, I'd like to represent that I'm also involved in the Castano tobacco litigation, the nicotine addiction class action suit that has been filed in New Orleans.


MR. SANDMAN: Gentlemen, good afternoon.

The San Francisco Hotel Association is the organization who contacted you, is that correct?

MR. GALFOND: That's correct.

MR. SANDMAN: Was it Mr. Robert Jacobs from that organization with whom you spoke?

MR. GALFOND: I don't recall. Do you?

MR. TANSING: Who initially contacted us?



MR. SANDMAN: Did you at any time have any meetings with Mr. Jacobs?

MR. TANSING: No, I've never met Mr. Jacobs.

MR. SANDMAN: What is your understanding as to what the San Francisco Hotel Association is?

MR. TANSING: I would assume they represent hotels and motels in San Francisco and look out for their interests.

MR. SANDMAN: Were you provided with any information by that organization other than the charge which they gave you to do the study?

MR. TANSING: I don't think so.

MR. SANDMAN: Did they give you any materials? Did they give you a list of their members or their sponsors?



MR. SANDMAN: What exactly was your charge? I'm wondering if you had any correspondence or any notes relating to that. It sounded to me as if your charge was to find out the impact of this regulation upon foreign tourism.

MR. GALFOND: No, it was more specific than that.

MR. SANDMAN: If you would tell us what that is, and if you would...

MR. GALFOND: It was to do a survey of travel agents and tour operators to ask their opinions of their clientele, about their clientele's reaction to this, and to collect information. So that would give yo information on what the percentage of change might be, and you can match that up with information from the Department of Commerce on what totals you'd be applying the change to.

MR. SANDMAN: So the idea that you speak with travel agents rather than foreign smokers themselves, that suggestion came from the San Francisco Hotel Association, is that correct?

MR. GALFOND: That's correct.

MR. SANDMAN: I also assume that you did not recommend to that organization that a more appropriate examination would perhaps be foreign smokers themselves rather than people who may have opinions about what foreign smokers might do.

MR. GALFOND: I wouldn't say it's more appropriate. I would say it's more accurate. But there's the issue of time and cost and things like that, so...

MR. SANDMAN: Was that issue even discussed with this organization?

MR. GALFOND: I don't think so.


MR. SANDMAN: One of you seems to say yes and one seems to say no. I'm sorry.

MR. TANSING: Yes, of course we discussed that with them briefly. It was not in the scope of what they were looking for.

MR. SANDMAN: So you suggested to them that it might be more accurate to actually speak with smokers rather than the travel agents who book their trips.

MR. GALFOND: We stated that that was an option.

MR. SANDMAN: They rejected that option.

MR. TANSING: I would say they chose not to go with that option. I would say they rejected it, yes.

MR. SANDMAN: The meetings that took place, did they take place in Washington or did they take place in San Francisco?

MR. TANSING: Over the phone.

MR. SANDMAN: You never met them in person?


MR. SANDMAN: Who was present. Was it just you two gentlemen involved in the discussions, in the relationship that was formed with the San Francisco Hotel Association?

MR. TANSING: No not exclusively us two. I believe there was one other person. She's not here today.

MR. SANDMAN: One other person?


MR. SANDMAN: But I understand you two that had the most close contact with this organization.


MR. SANDMAN: Did you inquire as to the reason for this survey?

MR. TANSING: I think we discussed it. They were concerned about what impact potential OSHA regulations would have upon their business.

MR. SANDMAN: So specifically in response to this regulation.

MR. TANSING: Well, I think that... I can't say that it was specifically in response, but I think that was a large factor.

MR. SANDMAN: At any time during the discussions you had with the San Francisco Hotel Association, were there any representatives of any of the tobacco manufacturers or suppliers who were privy to those conversations? In other words, present at one of the two locations where these discussions were taking place?

MR. TANSING: You're asking whether... They may have had discussions with them.

MR. SANDMAN: Were they present, or were you aware at any time that any tobacco company was listening in on the conversation or was being made aware of the information that you two had exchanged? And by you two I mean you and the organization in San Francisco.

MR. TANSING: It wouldn't surprise me.

MR. SANDMAN: Do you know of actual contact that they had with the tobacco industry?

MR. TANSING: I would be speculating.

MR. SANDMAN: You said that it wouldn't surprise you. Upon what do you base that?

MR. TANSING: It would not surprise me that if they are looking at the impact of OSHA regulations on smoking that the parties that you discussed may have been interested in that.

JUDGE VITTONE: You either know or you don't know. Do you know? Do you know as a matter of personal information and knowledge? I think that's his question.

MR. TANSING: I believe that they probably did, yes.

MR. SANDMAN: You're familiar with the relationship that the San Francisco Hotel Association has with the tobacco industry, are you not?

MR. TANSING: I don't know the exact relationship.

MR. SANDMAN: Are you aware of the relationship that the tobacco industry has with Mr. Jacobs who is, I believe, the President of the San Francisco Hotel Association with regard to Proposition 188, the recall initiative in California?

MR. TANSING: I'm not aware, no.

MR. SANDMAN: Would it surprise you to learn that the tobacco industry representatives and the San Francisco Hotel Association have been working in concert on the issue of Proposition 188 in California?

MR. GALFOND: Excuse me for interrupting here, but if this line of questioning is getting at do we believe that there is a, the San Francisco Hotel Association has an agenda here against the proposed regulations, I think that's fairly obvious. If you're getting at whether or not we let that influence our work, that's a different issue.

MR. SANDMAN: I haven't suggested that yet. Perhaps I will before my questioning ends.

MR. GALFOND: Okay, well, I would argue with that, but I would be happy to agree, I'm sure our client has their own purpose in doing this and obviously it's not for the regulation and...

MR. SANDMAN: So you understood that going into it, that they have a bias against this regulation.


MR. SANDMAN: And you understood that, going into this, that they are hoping that you will come up with results which will show there will be a decrease in tourism or of foreign visitation to the United States if this regulation is put in place.

MR. GALFOND: I don't think I've ever had a client that didn't have a hope of how the study would turn out.

MR. SANDMAN: And my present inquiry has to do with, obviously, the tobacco industry has a similar interest...

MR. GALFOND: I'm sure...

MR. SANDMAN: ...in seeing this regulation not go into effect. Would you agree with that?

MR. GALFOND: Although I'm not an expert in the area, I'm sure that's true.

MR. SANDMAN: And you would also... You have intimated, although just intimated, that you have a vague understanding of a relationship between the San Francisco Hotel Association and the tobacco industry, two organizations, or two groups, that share the same position in this regulation. Is that right?

MR. GALFOND: I'm sure they're one of several groups who share their same position.

MR. SANDMAN: The cost of this study. Can you tell us the amount of it, please? How much you charged the San Francisco Hotel Association?

MR. GALFOND: I don't mind telling you, but it's something I really can't do without asking the client's permission. Just as a general rule and, you know, we...

MR. SANDMAN: How's that?

MR. GALFOND: Well, just in general, when somebody hires us that's their private decision as to whether they want to make that public to the world, or not. I mean, I don't mind, and they may not mind either. It's just as a... I haven't asked them this question. But as a routine course, just, you know, if you want to ask me my other clients, what they pay, I can't tell you.

MR. SANDMAN: Who paid it?

MR. GALFOND: San Francisco Hotel Association.

MR. SANDMAN: It came via check?

MR. GALFOND: I don't know if it was check or wire transfer but yes, they...

MR. SANDMAN: It didn't come from any other organization that you know of. Is that right?

MR. GALFOND: That's correct.

MR. SANDMAN: And you're not, you obviously don't know who funds the San Francisco Hotel Association.

MR. GALFOND: That's correct.

MR. SANDMAN: And you don't know if the tobacco industry supports or sponsors the San Francisco Hotel Association. Is that correct?


MR. SANDMAN: The drafts of the report. How many were there?

MR. GALFOND: One that I know of. Was there more than one? I mean...

MR. TANSING: I can't... Maybe three. One to three drafts.

MR. SANDMAN: One to three drafts. Okay. The...

MR. GALFOND: We probably went through some iterations before I saw it.

MR. SANDMAN: Was that sent by mail or Federal Express or something like that to the organization in California?


MR. SANDMAN: For review before you actually used it.


MR. SANDMAN: Okay. And to whose attention was it sent?

MR. TANSING: To a representative of the San Francisco Hotel Association.

MR. SANDMAN: You then received back a document. In some manner it was sent to you. No?

MR. TANSING: No. I don't believe I ever received back a document.

MR. SANDMAN: With changes?

MR. TANSING: I don't believe I did.

MR. SANDMAN: Any telephone conversations regarding what changes they desired to see in the study?

MR. TANSING: Some, I guess. Sure. Yes.

MR. SANDMAN: Do you have any notes with regard to their suggested changes?

MR. TANSING: I probably do. They may be unclear what are their changes or my changes or Glen's changes.

MR. SANDMAN: What I'm getting at is, is there something, is there a way of progression, or a series of documents, which will show what you started with and what you ended up with and what the suggested changes were in between?

MR. TANSING: I think we have... I think we have that but it's kind of hard to, it may be hard for somebody to look at it and tell exactly what's going on. I mean, the document that we came up in draft and in the final document was not significantly different.

We developed the analysis. We developed the outline of the report. If... I would say that any comments were minor.

MR. SANDMAN: You would make those available if they were requested, however?

MR. TANSING: I would check with the client, but I have no problem.

MR. GALFOND: I don't have a problem. I don't have a... The only thing, so it's clear, is to when you mark it, are those your changes or somebody else's.

MR. TANSING: That's what I said. It's difficult to tell whose were whose.

MR. SANDMAN: You expected, you anticipated testifying first thing this morning. Is that correct?

MR. GALFOND: That's correct.

MR. SANDMAN: As part of today's testimony did you meet with anyone to discuss your anticipated testimony?

MR. GALFOND: Yes. Jay and I met this morning.

MR. SANDMAN: Aside from the two of you meeting, did you meet with anyone else?


MR. SANDMAN: In anticipation of this testimony, at any time have you met with any representatives of the tobacco industry?

MR. GALFOND: I'm not sure who's a representative of the tobacco industry. We've met...

MR. SANDMAN: Any of the gentlemen or ladies sitting...

MR. GALFOND: ...with Fred.

MR. SANDMAN: ...in the room today? Do you recognize...

MR. GALFOND: Yes. Fred Carter.

MR. SANDMAN: ...any of them? I'm sorry?

MR. GALFOND: Fred Carter.

MR. SANDMAN: Okay. Mr. Carter, you met with at some point?

MR. GALFOND: I saw him coming in here and...

MR. SANDMAN: When was that?

MR. GALFOND: I don't know. When was it? 9:29, 9:25.

MR. SANDMAN: There was no prep session, however, between the two of you?


MR. SANDMAN: Price Waterhouse has done work for the tobacco industry in the past. Isn't that true?

MR. GALFOND: I doubt there is an industry we haven't done work with.

MR. SANDMAN: I'm sorry?

MR. GALFOND: I doubt there is an industry we haven't done work with.

MR. SANDMAN: I believe there was a study that you did for the effect of... The tobacco company I think a few years ago was concerned about the effect of taxes on tobacco growing, and I believe you may have done a study at that time. Were you involved in that in any way?

MR. GALFOND: No. I don't...

MR. SANDMAN: You don't know the results of the study, do you?


MR. SANDMAN: You don't know...

MR. TANSING: I believe that was done for the Tobacco Institute.

MR. SANDMAN: Okay. Were either of you involved in that study?

MR. GALFOND: I wasn't, but you might have been. I don't know.

MR. TANSING: I was involved only in the late stages of that, when I first came here.

MR. SANDMAN: the Tobacco Institute paid Price Waterhouse for this study. Is that correct?

MR. TANSING: Can you name the study again? The full name of the study?

MR. SANDMAN: Well, it's my understanding that the tobacco industry claimed that a major tobacco tax increase would have a devastating effect on jobs and a concomitant effect on the economy.

MR. TANSING: That's the Tobacco Institute's claim

MR. SANDMAN: That's their... I'm sorry?

MR. TANSING: That's the Tobacco Institute's claim.

MR. SANDMAN: It's the tobacco industry's claim.

MR. TANSING: I think that was the Tobacco Institute's claim. Yes.

MR. SANDMAN: Okay. Is that... That's the study that I am referring to. Were you involved in that study?

MR. TANSING: We did not do estimates of what effect the federal excise tax increase would have on employment or anything else. We did not do that. To my knowledge, we did not do that.

MR. SANDMAN: To your knowledge, you did not do a study for the tobacco industry regarding the effect of a tobacco tax?

MR. TANSING: Well, I thought you said a federal excise tax.

MR. SANDMAN: No. I just said a tobacco tax.

MR. TANSING: Oh, no. We have done... We have done studies for the Tobacco Institute.

MR. SANDMAN: And there are many studies, or more than one study, that have been done. Isn't that correct?

MR. TANSING: Sure. Yes, I'm sorry. I thought you said a federal excise tax.

MR. SANDMAN: And each of those studies you have concluded, based upon my reading of these studies, that there would be an adverse effect of such a tax increase. Is that not your conclusion?

MR. TANSING: Well, if you can identify a specific study and then ask me about it I would...

MR. SANDMAN: I'm speaking of general studies and your understanding and what you've personally done.

JUDGE VITTONE: Let me... Mr. Sandman. I'm sure that's a very interesting area. But I don't see the relationship to indoor air quality. Okay?

MR. SANDMAN: The... The proposed regulation. You've both read it, obviously.

MR. GALFOND: I have scanned it. I have not read it.

MR. SANDMAN: Not read it. Okay. What's your... Your general understanding of that is what?

MR. GALFOND: That it's pretty much limited to what's in here, that they are going to ban smoking with certain exceptions dealing with separately ventilated rooms and I...

Frankly, we did not focus on the regulations as written because we felt it was hard to convey that to the respondents, so we said from the framework of an all-out ban, but with that in...

MR. SANDMAN: And in fact you used, I believe the expression "de facto ban" in your survey. Is that true?

MR. GALFOND: That's correct.

MR. SANDMAN: And you consider your understanding, although you haven't read it and skimmed it, your understanding is that this would be a de facto ban?


MR. SANDMAN: Would that be your own interpretation?


MR. SANDMAN: Do you... And therefore...

MR. GALFOND: It's including...

MR. SANDMAN: Would you consider that a stronger interpretation than what in fact this regulation says?

MR. GALFOND: I think we made that clear in the report. If you look at the front, we...

MR. SANDMAN: You make it clear maybe in the report, but I'm not too sure that you made it clear to the respondents. That's what I'm getting at. If you look at the studies, the questions themselves, you refer to the term "de facto ban" and yet it sounds to me that you considered that to be a stronger term than what in fact this regulation is all about.

MR. GALFOND: That is correct.

MR. SANDMAN: Okay. And did you preface... Knowing that, did you preface your comments, excuse me, your survey, and tell the respondents that basically you're going out on a limb here and you're looking at an extreme scenario. Because I don't see any such language or any such reference in the...

MR. GALFOND: If you're asking have we misguided some of our respondents, that the regulations being considered are more stringent than actually are considered, I hope we haven't done them a disservice. But what we tried to do was propose a scenario that was simple to understand. The scenario is not what the regulations say exactly, so I'm just trying to make sure there's no confusion here.

MR. SANDMAN: What I'm getting at is you used the term "de facto ban." Where did that come from?

MR. GALFOND: I don't know how we got that exact word. No.

MR. SANDMAN: And by your own admission "de facto ban" is a pretty strong term. Is that not right?

MR. GALFOND: That's correct.

MR. SANDMAN: Okay. And by your admission also, a de facto ban isn't necessarily what this regulation is going to accomplish. Is that correct?


MR. SANDMAN: Knowing that, and admitting to that, and I appreciate that candor, did you with equal candor advise the respondents in the tourism industry of that understanding or of that position?

MR. GALFOND: As a general rule, no.

MR. SANDMAN: It doesn't appear that your survey attempted to determine preference among....

I'll start that all over again because it's a lousy question.

Isn't it true that your survey did not attempt to determine the smoking preference among the respondents? The travel agents themselves.

MR. GALFOND: That's correct.

MR. SANDMAN: You didn't determine the number of foreign smokers in conducting this survey. Is that correct? The raw numbers.


MR. SANDMAN: You did not address, determine if there are more non-smokers than smokers in the foreign world. Is that correct?

MR. GALFOND: Maybe I've confused you, but if you look at the Appendix you can see exactly what we asked.

MR. SANDMAN: I'm trying to determine what you did not do. It appears to me that you did not determine if there were more non-smokers than smokers in the foreign world. Is that correct?

MR. GALFOND: Well, I think travel agents... We asked them how many prefer smoking accommodations, and I forget the number but it was around 30, 30-something percent, I think, so...

MR. TANSING: I think it was 36 percent.

MR. GALFOND: So in that sense they are telling us more, fewer prefer smoking accommodations.

MR. SANDMAN: Okay. And that 30-some odd percent is higher than the 28 percent response that you found that it would be a negative impact on tourism. Is that correct?

MR. GALFOND: The 28 percent that said there would be a decrease?


MR. GALFOND: Yes. You're asking me, is 36 bigger than 28. Correct?

MR. SANDMAN: That's exactly what I'm doing.



MR. GALFOND: If you keep it simple I can understand.

MR. SANDMAN: You did not determine why foreigners come to the United States. Is that correct?

MR. GALFOND: Again, you can look at the questionnaire.

MR. SANDMAN: I think most of these questions can be answered by yes and no. If you feel a need to editorialize, then...

MR. GALFOND: No. It's only that I'd like to get home to my family and if you're asking the obvious, I would prefer to avoid that.

MR. SANDMAN: So would I. So would I.

You did not determine, therefore, why foreigners come to the United States, whether it's a business interest or a family visit, to visit some of our national treasures, come to the Olympics or Fenway Park or the Grand Canyon, for that matter, did you?

MR. GALFOND: Did we ask about Fenway Park?

MR. TANSING: No. We didn't.

MR. SANDMAN: Obviously not.

MR. GALFOND: Yes. Obviously not.

MR. SANDMAN: The... You did not factor into your equation that non-smokers who travel to the United States will still come and previously may not have visited some places like casinos and restaurants and hotels but now may do so because there is no smoking, there might be no smoking, allowed in those places. Is that correct?

MR. GALFOND: We did not ask that specifically, no.

MR. SANDMAN: You didn't consider the positive effects of the OSHA regulation, did you? And I'll give you some specific ones.

Would you agree that based upon your cursory review of the regulation that there might be an increase in worker productivity because of these regulations?

MR. GALFOND: We did capture one side of the positive impact, and that is that some travel agents believe their customers would travel more. If we're getting back to questions that are obviously not in the questionnaire, I can save you time and just say no.

MR. SANDMAN: You didn't consider that there might be an increase in jobs in the construction and in the HVAC trades that would likely occur if this regulation is implemented?

MR. GALFOND: Of course not.

MR. SANDMAN: You did not consider that there might be an increase in the general health of workers if this regulation is implemented. Is that true?

MR. GALFOND: I would put that in the Fenway Park category as well.

MR. SANDMAN: Okay. You didn't... Did you consider that although there may be a decrease in tourism that there might be an increase in revenues to the government through greater productivity and job creation and construction and HVAC jobs that may created.

MR. GALFOND: If you would like to come up here and testify, it's fine with me.

MR. SANDMAN: This is cross-examination, and I...

JUDGE VITTONE: Gentlemen... Hold on. Hold on.

Mr. Sandman, I think the gentleman has said, both gentlemen have said on a number of occasions, as I understand it, that the only questions that were asked were the questions on the survey.

Now, you can draw all of those conclusions, I think, in any kind of brief that you want to file. But I don't think we're serving any purpose here by asking him a series of questions like this, and I...

MR. SANDMAN: Your Honor, I've just got a number of areas. Okay? Can I move on?

So I understand that you didn't concern yourselves with the health of United States workers but only the potential effect of the regulations on the economics of tourism. Would that be a pretty fair summary?

MR. GALFOND: That's true.

MR. SANDMAN: Okay. If it's concluded, as I'd suggest to you the great weight of evidence would suggest, that ETS, environmental tobacco smoke, is harmful, do you think that OSHA should consider the effects of tourism to be paramount to, or the conclusions raised in your study should be paramount to the health interests of American workers?

MR. GALFOND: I really think that they're the experts on what's important in this area. What I'm trying to do is give them more information. And if they look at this and say, "This is insignificant relative to the health effects," then fine. But I don't profess to be in a position to make that judgement. I'm just trying to give one little piece of information that goes into a very big equation.

MR. SANDMAN: And obviously, if there is a decrease, if there actually would be a decrease in tourism, that could be recaptured, could it not, by way of additional advertising and promotion?

MR. GALFOND: I'm not an expert in tourism.

MR. SANDMAN: The... You chose specifically not to mention that under this regulation there would be separate, that in the event that a building has separate heating and ventilation and air conditioning systems for smokers and non-smokers, there can actually be smoking permitted in a building.

MR. GALFOND: That was not in the scenario we described.

MR. SANDMAN: You described it, however, in your preamble and in various other locations in your study, but that wasn't described to the respondents. Is that correct?

MR. GALFOND: As I said before, we gave the respondents this scenario because it was something concrete that they could understand and give an answer relative to a concrete situation. We put it in the report to make clear that, you know, we're not trying to hide the fact that we gave them a different scenario. We just want to make clear what we did and why.

MR. SANDMAN: If you had told them that, don't you think that 28 percent negative response would have in fact been lower?

MR. GALFOND: You would think so.

MR. SANDMAN: Okay. If you also... And I'm obviously stating the obvious here. But people would still be allowed to come to the United States and smoke outdoors, in the privacy of their own homes, in the privacy of their automobiles, et cetera.

MR. GALFOND: If that's what the regulation says, then I assume so.

MR. SANDMAN: Well, do you understand it to be anything different than that?


MR. SANDMAN: And there was no reminder of that, so to speak, in the way, during your questioning of these tourists. Excuse me. Travel agents.

MR. GALFOND: We told them, as you can see in the Appendix where we say, you know, list exactly what we told them. We told them the ban was related to indoor smoking only. We didn't say, "But, by the way, outdoor is okay."

MR. SANDMAN: Yes. You'd agree with me, however, and you've done obviously a great number of these surveys, that the choice of words would be significant in the results that would be obtained.

MR. GALFOND: They could be.

MR. SANDMAN: Okay. And so if you used the words "a smoke-free environment" rather than "a de facto ban" then perhaps that too could make the negative, would have made the negative response lower.

MR. GALFOND: I think you'd have to give me a better context than that, though.

MR. SANDMAN: Well, you used the term "de facto ban." If in it's place "a smoke-free environment" were replaced, or took its place, would that not likely have made the negative responses less?

MR. GALFOND: I don't think so. Because, you know, we talk about a de facto ban but we talk about restaurants, bars, hotel rooms. We don't talk about... You know, we're not suggesting that includes in your car. So in my interpretation of, if you ask me this question, I wouldn't jump to think that means I can't smoke in my house or in my car, notwithstanding the fact that if someone is visiting my house and is working there that's a different issue.

MR. SANDMAN: Yes. You'd agree with me, would you not, that market conditions, cost of travel, economic climate, would also have an impact on the increase or decrease in tourism in the future?

MR. GALFOND: I think you could say that.

MR. SANDMAN: Obviously. The results indicate that you seem to find that there could be an effect, or a potential effect, or that may occur. And I use those words "could" and "potential" and "may" intentionally. Those... It sounds like you're talking about a possible, not a probable result.

MR. GALFOND: We're talking... We're talking about an estimate, and a range of values. I mean, we put in here, because we recognize that the $3.9 billion figure and some of the other figures are estimates that, because we talk to travel agents and not actual travellers, there's bias or error, so we tried to give a ball park figure and a range. If it's one percent instead of seven percent or five percent or ten percent. So, you know, by potential. That's what we mean by it.

MR. SANDMAN: It's possible versus probable, however, is your conclusion.

MR. GALFOND: Probable has to have a range associated with it. I mean, is it probable that the answer is exactly 3.9? I would say that the chance is about zero of it being that number.

MR. SANDMAN: The... And you've used the word yourself. We're talking about opinions, guesses, so to speak, versus any hard data. This is an estimate. This is someone's opinion about what somebody else might choose to do.

MR. GALFOND: No matter what you're talking about, opinions. Even if I went to foreign travellers, it would be their opinion of what they might do if this would happen.

MR. SANDMAN: But as you indicated earlier...

MR. GALFOND: I imagine that would be better than the travel agent.

MR. SANDMAN: That would be more reliable information, don't you think?

MR. GALFOND: I would think so. Of course.


MR. GALFOND: And if you have, oh, I'd say, a quarter of a million dollars in nine months, I'd be happy to do that study for you.

MR. SANDMAN: The survey did not go into the extent of the familiarity of the agents with the smoking habits of their clients. They didn't get into such things such as "How long have you known these clients?" or "How do you know that they smoke?" or "How do you know what their preferences are?"

MR. GALFOND: I think we're getting back into the question of what's excluded in the questionnaire.

MR. SANDMAN: And finally... And just a few more moments, and I'll be on my way here.

Did you examine at all any other industries or the effects of smoking regulations in this country and how that has impacted upon, either negatively or positively, revenues or...

MR. GALFOND: I think the report is pretty comprehensive in explaining what we did, and if it's not in there I think it's fair to assume we didn't do it.

MR. SANDMAN: Did you advise the San Francisco Hotel Association that that may be an appropriate indicator of what foreigners may choose to do?

MR. GALFOND: Not to my knowledge.

MR. SANDMAN: Did you advise the San Francisco Hotel Association that people travelling to the United States have a variety of motives and therefore, regardless of smoking or no smoking, they are likely still to come?

MR. GALFOND: No. That...

MR. SANDMAN: Are you familiar with... Obviously you know that there's a ban on airplanes today, of smoking. You know that, don't you?


MR. SANDMAN: Okay. The ban... If I suggest to you that, the ban took place in around 1989 to 1990, and I'll just refer in a moment and get exactly when it was. Wouldn't you expect that the revenues of domestic airlines would have decreased because of that?

MR. GALFOND: I would think there would be a small impact. You know, it's a little different when you're... And I'm not an expert in this area, so don't stretch it too much, but it's common sense says it's different when you're going for a week somewhere than when you're going for an hour on a flight to New York. So.

MR. SANDMAN: Yes. But the smoking... There are many...

MR. GALFOND: But if you asked me would it be positive or negative, I would say it's probably pretty close to zero.

MR. SANDMAN: Well, this is a rather expansive country, I'd think you'd agree, and trips across country take about six hours or so, and it's a fairly lengthy time, about the time that it would take a western European passenger to hit the east coast. So do you consider... Wouldn't you expect some kind of significant drop-off in the revenues of these airlines?

MR. GALFOND: I haven't studied that issue, so...

MR. SANDMAN: What would you expect? I'm not asking what you...

MR. GALFOND: I would expect a very small impact, but I'd really have no idea what...

MR. SANDMAN: It would be a negative impact?

MR. GALFOND: No. I said a very small impact. Like zero. Or very near zero. But I... I mean, that's just my opinion, an uninformed opinion.

MR. SANDMAN: I'd suggest to you that if you looked at Delta Airlines and American Airlines and United Airlines you will find that over the years since this there has been a steady increase in revenues every year. It was not blip on the screen, even. That the revenues increased each year, even because of this ban. What would your explanation of that?

MR. GALFOND: Then my uninformed opinion was correct. There's no effect.

MR. SANDMAN: Okay. And yet you concluded here that there would be an effect for the foreigners coming to this country. For foreign travel to the United States. Isn't that correct?


MR. SANDMAN: Why. Don't the two sound inconsistent?

MR. GALFOND: Well, I don't know. One was my uninformed opinion and it was correct. The other is my informed opinion based on the survey, and I'd hope that is equally correct.

MR. SANDMAN: Okay. Well, what I'm suggesting to you... And you're free to review the value line studies that I have here.

I don't want to take too much of your time on the issue, Your Honor, but...

And you're free to examine them and look at the revenue increases each year, and in fact it goes well before, it starts well before the ban took effect. And it shows a steady progression of revenues in each of these airlines and others. So now I'm actually informing you, sir. Does that surprise you?

MR. GALFOND: Not at all. If you're asking me... It sounds like what you're asking me is, "Gee, should we know what the answer is based on what happened with an airline smoking ban?"

And you know, if I thought that, I would have told my client, "Gee, you don't even need to do a study. You can just go look at the airline smoking ban. It tells you everything you need to know."

MR. SANDMAN: Well, weren't you actually, what you were doing, is trying to give this organization some fodder to be able to fight this regulation?


MR. SANDMAN: What were you doing it for, then?

MR. GALFOND: For an objective study, regardless of the outcome.

MR. SANDMAN: You consider this an objective study?


MR. SANDMAN: Despite the fact that you didn't ask the people themselves, but asked their agents, who knew nothing about the smoking habits of the people for whom they book trips.

MR. GALFOND: I would disagree with the fact of whether they know nothing about the smoking habits. I say this is objective in terms of I have...

You know, I'm not here as an advocate. I'm not here to push a position. Had the San Francisco Hotel Association hired us or had you hired us, we would have come out with the same answer. The fact that the San Francisco Hotel Association hired us rather than you is irrelevant to how we do the study. In that sense it's objective.

Is it... Do they have their agenda?


MR. GALFOND: Well, that's probably why they hired us instead of you.

Do they believe it's true? You know... I don't know. I feel like I'm stating the obvious here.

MR. SANDMAN: Well, obviously the way you begged the question and the way you asked the question, and the way you conduct your survey, will determine the results that you obtain. Correct?

MR. GALFOND: Correct.

MR. SANDMAN: Finally. Or one of two final little points.

MR. GALFOND: Let me, I'm sorry, correct that. It will not determine the results. It will influence them. Obviously, the facts in the real world will have a larger role.

MR. SANDMAN: Back in 1988 the American Lung Association did a study showing public support for a total ban on smoking in all public settings. Would it surprise you to learn, in light of your results here, that a majority of smokers were not opposed to restrictions on smoking in most public settings, including the workplace?

MR. GALFOND: I'm not familiar with that study.

MR. SANDMAN: Taking that as true, and I know it's... I'm presenting it as a hypothetical to you. Would that surprise you in light of the results which you have come here today to testify upon?

MR. GALFOND: I'm sorry. You'll have to restate. What results are we talking about?

MR. SANDMAN: That a majority of smokers in the... That the American Lung Association spoke to a number of people, and a majority of the smokers that they talked to were not opposed to restrictions on smoking in most public settings, including the workplace. Do you find that at all inconsistent with your findings in this survey?

MR. GALFOND: I don't know that they are inconsistent.

First off, I am surprised, actually, now that I understand what you said that most, at least the way you described it, that most smokers wouldn't care if there was increased regulations preventing smoking in public places. But the question is not does every single smoker feel that way. The question is, are there more that feel that that would be a disincentive than feel it would be an incentive.

MR. SANDMAN: Yes. And I keep saying I'm almost done, and I am almost done. I'm down to about two minutes here.

If you conduct a study for someone, and after they've paid you and you've closed up your file and you put it in the file drawer, and you read something in the paper or you hear something on the news that makes you want to revisit this issue, do you pick up the phone and call the organization and say, "Hey. Something came out. This might be helpful to you"?

MR. GALFOND: If I thought it was helpful?



MR. SANDMAN: What if you thought it was inconsistent with the results that you found? Would you call them up and say, "Hey, listen. I know we found this. I just want to make you aware of this. There's this other study out here, and I think it's kind of inconsistent with what we've found"?

MR. GALFOND: It depends on the context.

MR. SANDMAN: Are you familiar with what Delta Airlines has done recently?


MR. SANDMAN: Delta Airlines recently, effective January 1st, has banned all international flights. And they did so...

MR. GALFOND: Banned all international flights?

JUDGE VITTONE: Excuse me. Do you want to...

MR. SANDMAN: Banned all smoking on international flight. I don't think they've banned them yet, Your Honor. Smoking...

MR. GALFOND: It seems to me I did hear about it.

MR. SANDMAN: You have heard about that.


MR. SANDMAN: So there's no smoking on international flights. Do you know the circumstances behind that, and how they arrived at that decision?

MR. GALFOND: No, I do not.

MR. SANDMAN: Okay. They in fact did a survey of about 22,000 people. Actual individuals. Not the travel agents, but the people themselves. And...

I'm sorry. How many travel agents did you speak to?

MR. GALFOND: I think it was clear in the report. Three-hundred.

MR. SANDMAN: Three-hundred travel agents versus 22,000 surveys of Delta passengers. Of those completing the survey, 22 percent were smokers.

The results found that... And, by the way, 45 percent of the people were foreigners. And the results, or the conclusion of those results, overwhelmingly indicated that there was a strong preference for no smoking on international flights. In fact, I think it was about a four to one ratio. Maybe even a little bit more than that. Are you aware of that at all?

MR. GALFOND: No, but it's not surprising.

MR. SANDMAN: Why is that?

MR. GALFOND: Well, because more people don't smoke than smoke, and if you said 22 percent are smokers... And I wouldn't say it's 100 percent, all the smokers are against it and all the non-smokers are for it, but that sounds like, four to one, non-smoker to smoker.

MR. SANDMAN: And this is international travel, so there are people where the travel originates not just in the United States, but the travel would actually originate in a foreign country. Foreigners would actually book onto Delta Airlines. Correct?

MR. GALFOND: Right. Yes.

MR. SANDMAN: And by a four to one ratio, I believe, Delta found that there was a strong preference for restrictions or no smoking on the flight. Is that the kind of information that you think the San Francisco Hotel Association might like to know, even though it is inconsistent or contrary to what they'd like to advance in these hearings?

MR. GALFOND: I don't think it's at all inconsistent or contrary to what we found here. And, you know, would they like to know that? I'm sure they'd like to know. I'm sure they know it already. It's all over the papers.

MR. SANDMAN: Do you know why Delta actually made the decision?

MR. GALFOND: I assume it's because they think they'll make more money on it.

MR. SANDMAN: That's exactly the reason that they stated in their publication and in the question and answer...

JUDGE VITTONE: Mr. Sandman, I think we're getting into speculation and testimony by you now. Okay?

MR. GALFOND: Thank you, Your Honor.

MR. SANDMAN: Hour Honor, I have concluded, and I appreciate the time the court has given me.

JUDGE VITTONE: As one who has spent a lot of years in opposition to airline attorneys and presiding over airline hearings, I think that they would find some of your questions quite interesting. Thank you. And also the chief executives.

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

MR. RUPP: Just a few minutes, Your Honor.

JUDGE VITTONE: Okay. This gentleman seems to have to, he wants to get back to his family for some reason.

MR. RUPP: Then I will try to...

MR. GALFOND: For some strange reason.

JUDGE VITTONE: I don't know why he thinks he's unusual or different than the rest of us, but...

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

Let me begin by asking a question I thought I would never ask in these hearings. Do either of you fellows smoke?

MR. GALFOND: I'd prefer to keep that out of the issue.

MR. RUPP: Fair enough.

MR. GALFOND: I don't want to be an advocate; I don't think my personal views on the issues have anything to do with this.

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

I'm going to ask you a series of questions. I think I do know the answer to these because I am a smoker, but let me see whether you have an opinion, whether intuitive or otherwise.

I take it you do travel, both of you.


MR. RUPP: Travel on airlines?


MR. RUPP: All right. And you've already been told probably 20 times today that there is a ban on smoking on domestic flights in the United States. You probably knew that though before you came in here today.

MR. GALFOND: Obviously. Obviously.

MR. RUPP: Have you ever looked around when you get off an airplane flight across the United States, or indeed a shorter distance and see what's happening, what a number of the passengers are doing when they step outside that plane, as soon as they are in an area where smoking is permitted?

MR. GALFOND: Are you asking me do they light up?

MR. RUPP: Do you notice it?

MR. GALFOND: I think everybody has seen that. Yes.

MR. RUPP: Right. And they do it in substantial numbers. It's hard to get off an airline flight without seeing people start to light up a cigarette.

MR. GALFOND: Actually, now it's getting hard to see people lighting a cigarette because all the airports are smoke-free.

MR. RUPP: Right. And when you go outside and wait for the cab, in those kinds of airports, that's where you see the cigarettes lit.

MR. GALFOND: That's correct.

MR. RUPP: Have you seen fellows, and women as well, get off of airlines, and they have their cigarette in their hand as they walk down the tunnel that leads them to the terminal?

MR. GALFOND: I don't know what tunnel you're referring to.

MR. RUPP: That is the tunnel that comes from the plane, from the plane into the airport.

MR. GALFOND: No, because it's usually smoke-free.

MR. RUPP: Not smoking the cigarette, but holding it.


MR. RUPP: All right.

MR. GALFOND: Sometimes.

MR. RUPP: Okay. If one is going to go to California on a trip, or to Arizona, what are the options you have? You can walk. You can ride a bicycle. You can go by bus. You can drive a car. You can take a truck. You can go by a very long boat. Or you can take a plane. Right?

MR. GALFOND: Obviously.

MR. RUPP: But the options and their relative desirability depending on one's objectives are very limited in that circumstance, are they not?

MR. GALFOND: Correct.

MR. RUPP: Now, if I am a resident of Paris, for example, and I'm trying to decide where I'm going to take my four-week holiday, the options are not quite so limited, are they?

MR. GALFOND: Correct.

MR. RUPP: And, indeed, I could go in almost any direction, north, south, east or west, and any combination of those, depending upon the relative mix of desirable characteristics of the points of destination, my resources, my objectives and so forth. Is that not also correct?

MR. GALFOND: I mean, I think you're leading up to way we came out with a negative impact.

MR. RUPP: I am leading up to that, but I guess my preliminary point is a more limited one. And that is, while I'm amused by all of the questions suggesting that the answer to the inquiry that you were asked to undertake was clear from the effect of an airline smoking ban, and that has been represented today rather than shown, but represented.

As a smoker, I'm finding difficulty seeing the logic of it. Would you explain to me how even if an airline smoking ban is revenue neutral, given the limited time one spends on a plane, that has anything at all to do with a smoker's choice of a destination where he or she may spend a week, two weeks, three weeks, a month, and not be permitted to smoke any place other than outside?

MR. GALFOND: I think I answered that with the last gentleman. I don't see much...

MR. RUPP: Much connection at all.


MR. RUPP: Now, if we were to look at a situation, for example, there has been a ban on elevators, smoking in elevators, in this country for a good long time, haven't there?

MR. GALFOND: Correct.

MR. RUPP: All right. And I suppose one could, with rhetorical flourish, say that there probably has been no adverse economic impact from bans on smoking in elevators, but that wouldn't tell us very much either about the impact on tourism of the kind of regulation that OSHA is contemplating here. It's just apples and oranges, is it not?

MR. GALFOND: Of course.

MR. RUPP: I'm going to ask a couple of follow-up questions about the way that Price Waterhouse characterized the OSHA proposal.

But before I do that, I'd like to ask Ms. Sherman and the rest of the OSHA staff whether... Because I want to make sure I understand the proposed regulation as well, and during the initial phases of this proceeding these questions were asked, how restaurants might accommodate the proposal that's been made.

And it was clear from the testimony of Mr. Martonik that as proposed in restaurants and bars the smoking room, if one were established in a restaurant or a bar, that no one employed, that is no waitress, no bartender, no one of that sort, could enter that room while smoking was taking place. Not to take orders. Not to give you a beer. Not to pick up your meal. No matter how old it was getting, sitting there in front of you.

And the question I have for OSHA is whether there has been any further refinement. They said they were going to refine their thinking, maybe there were other ways to handle that. Some sort of self-service operation that wouldn't be quite so unattractive or inconvenient. Are we talking still about a de facto ban or are we talking about something else in restaurants or bars?

MS. SHERMAN: I am not aware...


MS. SHERMAN: I think the record will have to speak for itself on this, Mr. Rupp. I'm not aware that OSHA has changed its position since the hearing started. That is not to say that it will not.

MR. RUPP: Okay. I appreciate that. That was precisely what Mr. Martonik said.

But at this point the regulation is written so that no one would be able to serve anyone in a restaurant or bar area in which smoking was occurring, and in hotel rooms there would be no smoking as well, so long as there were any service operations occurring.

Now, does that sound to you very much different than a de facto ban on smoking in bars or restaurants?

MR. GALFOND: It sounds different. I mean, it would... I can't judge to the extent that people's answers would differ had I presented that scenario, but I don't know that it would be real large.

The reason we present it this way if that if you think about how you just explained to me how the regulations would work, by that time they've already hung up on the interview, and we haven't completely defined how it works. And so the reason we took the de facto ban was that it was something we could convey easily and people wouldn't have to, in addition to trying to estimate how many of their customers' habits would change, also estimate how many restaurants might put in some kind of separately ventilated room and what exactly it means, and how convenient will it be for me to make my order if I'm in this separate room, and so on and so forth.

MR. RUPP: Okay. Would it be fair to characterize what you're presenting this way, then? If the OSHA proposal as made and implemented amounts to a de facto ban; that is, if when all of the rhetoric is pierced through, it's uneconomical and just would be nutty for any restauranteur or bar owner to try to operate in those circumstances so that banning is the only option, or going out of business, that your study gives some notion of what the impact of that is likely to be on foreign travel as assessed by the people who book those travellers? Make travel plans for those people.

MR. GALFOND: That's correct.

MR. RUPP: All right. Now. Questions were asked about whether there were other methodologies that could be utilized to get at information of the sort that you've presented. Do you remember those questions?


MR. RUPP: And I think your colleague indicated that one possibility would be to call people in countries other than the United States, I suppose one would try to find out whether they contemplated travel to the United States at any point in the next two, four, five, ten years, whether they had any thoughts about how long they might stay, and what they believe their reaction what be to a de facto ban on smoking in the United States in the places that they would frequent. That is one possibility, is it not?

MR. GALFOND: That's a possibility. Probably I would recommend a similar approach, rather, though, capturing their opinions here. Perhaps intercepting people at the airports, or something like that.

MR. RUPP: Well. The first approach that I suggested would be, would you not agree, both incredibly expensive, particularly if you were gong to try to get a sense for a number of different countries outside the United States, and incredibly time-consuming, and would present all sorts of sampling frame issues about the representativeness of the people you were ultimately reaching.

MR. GALFOND: No question that's true.

MR. RUPP: Now, another possible option is to intercept people at some point in time, a couple of week period, a couple of month period, a year, whatever, at various gateways to the United States, and if they were prepared to bypass the people who were meeting them at the airport and talk to a survey researcher instead about what they feel about smoking, you might get some sort of sample and some sort of set of responses.

Again, that would be a very difficult survey to undertake. It could also be quite expensive, could it not?


MR. RUPP: And you would have some difficulties defining a sampling frame that would make really any sense.


MR. RUPP: All right. Now, neither of those kind of studies have been done, I take it.

MR. GALFOND: That's true.

MR. RUPP: To my knowledge, anyway. And indeed, so far as assessing the impact of a de facto smoking ban on foreign travel to the United States, this is the only study of which we are aware, is it not?

MR. GALFOND: The only study...

MR. RUPP: It's the only study of which I'm aware.

MR. GALFOND: It's the only study I'm aware of.

MR. RUPP: All right. So that at this point, with its limitations which have been stated fairly clearly in the report, this is the best evidence we have of what the impact of a de facto ban is likely to be. Would you agree with that?

MR. GALFOND: To my knowledge.

MR. RUPP: Now, you wouldn't have any problem, would you, if OSHA wanted to give Price Waterhouse a substantial sum of money to conduct a better study than the currently best available study, would you?

MR. GALFOND: No problem whatsoever.

MR. RUPP: So you might leave the two staff members your cards before you leave.

MR. GALFOND: Can I hire you as a salesman?

MR. RUPP: Not today. I'm going home.

JUDGE VITTONE: That's enough of that. Let's move on.

MR. RUPP: You do understand, do you not, the previous question I asked you about the possibility of a foreign traveller to the United States still having the ability to smoke in the privacy of his or her own home? Would we expect many foreign travellers to the United States to own a home in the United States in which they could smoke in the privacy of?

MR. GALFOND: I wouldn't expect that.

MR. RUPP: Okay. Another I thought somewhat more interesting series of questions were asked about, I think went to the question of netting. That is, one would kind of intuitively assume that there might be some people who if they knew there were going to be a de facto ban on smoking in the United States would find travel to the United States more attractive. There might be some people like that.

MR. GALFOND: That's correct.

MR. RUPP: And concomitantly, intuitively, one would think that there would be some smokers, when informed that they, any vacation, for example, that they took in the United States, they would not be permitted to smoke. They would find the United States less attractive as a destination. Isn't that correct?

MR. GALFOND: That's correct.

MR. RUPP: Now. The question you asked the travel agents and the tour operators, as I read it, was for a net assessment of the impact, pro and con, and whether they thought foreign travel to the United States would increase, remain steady, or be affected negatively by a de facto smoking ban. Isn't that the question that you asked?

MR. GALFOND: That's correct.

MR. RUPP: So that they were being asked to take into account any positive influx from people who desired a venue where no one was permitted to smoke. Not them, and not anyone else.

MR. GALFOND: That's correct.

MR. RUPP: Similarly, would you not agree that the mix of smokers and non-smokers among the travellers would also be taken into account in that bottom line question that you put to travel agents?

MR. GALFOND: That's correct.

MR. RUPP: Gentlemen, thank you.

Thank you, Your Honor.

JUDGE VITTONE: Thank you, Mr. Rupp.

Let me make sure. There's nobody else, is there?

Gentlemen, thank you very much for your time. We appreciate it.

MR. GALFOND: Thank you.

JUDGE VITTONE: Have a good day.

Let's see. Before I forget... Don't go running off because I may make some changes here. You may want to find out about them.

Now, as I understand it, the only witness we have tomorrow is Mr. Gordon Newall, Consultants in Toxicology. Does anybody know how long his presentation is? His direct presentation? On the list that I have I saw 10 minutes. I'm not sure how up to date that is.

MS. SHERMAN: Your Honor, I'm sorry. I don't know.

JUDGE VITTONE: Would anybody be violently opposed if I said, since we only have one witness tomorrow, we start at 10:00?

MS. SHERMAN: Could we just... Could I ask the Price Waterhouse people something?


MS. SHERMAN: When can we expect to get the raw data from you? Is this going to be a week or a month, or don't you know yet?

MR. GALFOND: A week.

MS. SHERMAN: Okay. Thank you.

JUDGE VITTONE: Hearing no opposition, we're going to start at 10:00 tomorrow.

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