OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, January 10, 1995
OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, January 10, 1995
UNITED STATES DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
PUBLIC HEARING
PROPOSED STANDARD FOR INDOOR AIR QUALITY
Tuesday, January 10, 1995
Department of Labor
Washington, D.C.
The above-entitled matter came on for hearing, pursuant to notice, at 9:30 a.m.
BEFORE: HONORABLE JOHN VITTONE
Administrative Law Judge
AGENDA
PAGE
Institutional and Municipal Parking Congress 10466
David L. Ivey
Marie Witmer
Kim Jackson
David Fox
Questions:
Ms. Kaplan 10475
Ms. Janes 10484
Mr. Gross 10487
New York Public Employees Federation
Jonathan Rosen 10492
Joan Shepard 10512
Vince DiGulio 10504
Questions:
Ms. Kaplan 10529
Ms. Janes 10554
Mr. Gross 10558
Ms. Alexander 10565
Mr. Rupp 10567
Philip Witorsch 10576
Questions:
Ms. Sherman 10589
Mr. Myers 10648
Mr. Rupp 10675
Ms. Sherman 10700
EXHIBITS
EXHIBIT NO. IDENTIFIED RECEIVED
207 10491 10491
208 10527 10527
209 10527 10527
210 10528 10528
211 10528 10528
212 10528 10528
213 10529 10529
214 10648 10648
215 10704 10704
216 10704 10704
P R O C E E D I N G S
9:49 a.m.
JUDGE VITTONE: We resume our hearings into the proposed rulemaking on indoor air quality of the Occupational Safety and Health Administration this morning.
Our first witnesses area panel from the Institutional and Municipal Parking Congress.
Who is going to act as chairman of your panel?
Would you state your name please?
MR. IVEY: My name is David Ivey, I-V-E-Y.
JUDGE VITTONE: Okay. And would you identify the other members of your panel?
MR. IVEY: Yes. To my left is Marie Witmer, our Director of Technical Services. To her left is her assistant, Kim Jackson. And to my right is our General Counsel, David Fox.
JUDGE VITTONE: Okay. And is that right, it's the Institutional and Municipal Parking Congress?
MR. IVEY: Yes, sir.
JUDGE VITTONE: Okay, sir. Would you begin?
MR. IVEY: I'd be happy to. Good morning. My name is David Ivey and I'm the Executive Vice President of the Institutional and Municipal Parking Congress and I have just introduced my colleagues who are here with me at the table this morning.
The Institutional and Municipal Parking Congress is the national representative of roughly 1200 institutional and municipal parking operations. Our members own, operate and maintain parking facilities in all 50 states and employ roughly 1.1 million people. Ours is an industry with roughly $13 billion in annual revenues and it is our facilities upon which America's transportation system is based. Some of our more vociferous members like to say that the interstate highway system is the connecting system for our parking operations.
It is really our members' facilities that permit an economy of size and concentration. I refer, of course, to the parking that makes possible commerce in downtown urban core areas, sports facilities, airports, hospitals and schools and institutions of all kinds.
IMPC is a not-for-profit organization founded in 1962 as an outgrowth of the National League of Cities. It is an international association whose primary purpose is to provide educational and technical services to the parking profession and its related industries.
Our membership includes primarily entities of government such as municipal parking departments and authorities, college and university and parking and law enforcement departments, airport parking and land side operations and hospital parking and security departments. Additional primary members include theme parks, convention centers, hotels, shopping centers and numerous other parking operations.
The IMPC also includes commercial parking operators and hundreds of companies which supply products and equipment along with consulting, engineering and architectural services to the industry.
As the Occupational Safety and Health Administration has already received many months of testimony and numerous written statements of industry position, it is my interest and intent to focus on the primary issues facing the parking industry.
We respectfully suggest that there is a threshold issue that should be addressed before specific regulations are considered. Number one, are parking facilities the type of working environment that should properly be governed by the proposed rule? That is, in the vast majority of parking facilities, employees are stationed at entrance or exit points and are not subject to the environmental effect of interior space.
Some parking facilities can be below ground but even in those situations, employees are generally stationed in an area of ingress or egress, most often at the top of a ramp and most often in a position where fresh air embraces one side of their work station.
Even in below ground facilities, it is highly unusual for employees to spend very much of their day away from these points.
Importantly, more than two-thirds of our members' parking spaces are either in surface lots, totally open to the air, or in semi-enclosed structures with numerous areas open to the wind and sun. There is not one lone type of work environment for all parking employees.
It is the position of IMPC that parking facilities generally are not the type of industrial work environment, let alone indoor work environments, that the proposed rule was intended to address.
Assuming for the sake of argument that one category of parking facilities, that is, the underground type of facility, was or is within the ambit of the proposed rule, the question still remains whether the proximity to the elements render moot the need for regulation.
Further, it would appear arbitrary to embrace all underground facilities into one rule, since they are decidedly different. Newer facilities generally provide for air exchange and commonly the availability of work booths provides a separate controlled environment often with air handling equipment, air and heating systems and the like.
As a further preliminary matter, IMPC notes that the concerns which serve to justify the proposed regulations in office buildings and factories and the like do not seem to apply to parking facilities.
Of the specific health effects enumerated in Section 2 of the regulation, most do not apply to parking facilities. Parking is not an industry where there are complaints of either sick building syndrome or building-related illness. Nor is there history of difficulty with environmental tobacco smoke. Please consider, number one, in service lots, these problems simply do not exist; two, in open parking decks, these problems also do not exist; and, three, in underground parking lots, employees are almost universally stationed at ingress/egress points where there is access to wind, air, weather and the elements generally.
As a work environment, parking does not suffer from the detrimental aspects of various other industries. Moreover, given the industry trend of placement of employees in booths, the concept of facility-wide regulation makes no sense if the goal is to protect employees.
Number two, feasibility of compliance, technological, need for survey information. Although installation of air handling equipment is no doubt technologically possible, there is a significant question whether underground parking facilities offer the ceiling height and exit points to accommodate the equipment sufficiently. Unless these specific items are addressed, it is the position of IMPC that the rule may be premature.
Moreover, a further preliminary matter is the need to survey existing facilities, presumably underground facilities, as there is no current information that would allow for effective rulemaking. That is, there is no information available as to the age of structures or even the number of structures to which the rules would apply and certainly there is no detailed information as to the technology required for each type of structure.
Underground parking facilities are generally constructed of solid concrete without significant chimney chase type leads. That is, to regulate air quality, significant construction would be required. Such construction raises questions as to ceiling height, structural integrity, long spans for blowers. We also inquire where newly required air handlers would vent the carbon monoxide and hydrocarbons.
IMPC has certainly heard anecdotal renditions of air quality issues but is not aware of any study that indicates the fact that there is a need for such work-related rules or, indeed, the extent of that need if such exists.
As an example of the random nature of the regulation, we know that IMPC members employ roughly 1.1 million people while the agency suggests that 332,000 employees would be affected by the rule. The rule does not make clear whether the discrepancy exists because OSHA assumed only underground lots were covered and other categories of lots were excluded or because the agency isn't aware of how many lots are self-park.
The IMPC is not aware of any studies which show a problem with air quality in surface parking lots or partially open parking facilities and this lack of demonstrated need must be analyzed in light of the fact that there has been no analysis of the cost or impact of the proposed regulations of which we are aware.
The IMPC is not cognizant of any study that analyzes the cost of retrofitting the major categories of parking facilities or the impact of construction on parking operations or the cost of parking operations.
Concomitantly, there are no studies that analyze the impact on institutions that depend on parking in the situations where the regulations are put into effect.
Just as it would be non-scientific to postulate parking rate increases, economic effects of job loss or the like, so, too, would it be guesswork to say that the regulation is needed.
It is the position of IMPC that because of this lack of information the proposed regulation fails in a practical sense and fails to satisfy the threshold requirements of the Office of Management and Budget which would seem to require cost benefit analysis prior to rule imposition.
IMPC members operate facilities that are owned by various entities, both public and private. In effect, the proposed rule would foist on local and state government a requirement that they comply with the federal standard. In a situation where studies have not shown (a) necessity, (b) feasibility or (c) cost, the issue of 10th Amendment applicability will arise. Moreover, the expenses incident to this regulation would be large and we see no federal commitment to payment of the cost.
In situations where there are long-term contracts regulating the operations of parking facilities, the proposed regulation may render the existing financial and operational provisions unworkable.
The regulation does not specify the responsibility for compliance. Does it lie with the facility owner or operator? Indeed, the proposed regulation thus fails to give notice.
We are now seeing the benefits of implementation of regulations requiring the use of cleaner fuels. The existence of older vehicles that has spurred the need for these advances are themselves becoming obsolete and the beneficial effect on air in our members' facilities may be significant. Concomitantly, EPA mandated clean air rules in urban areas, which are areas of high concentration of parking facilities, are now being implemented.
It is of concern to the IMPC that given the positive impact of those rules the instant OSHA regulations may be less necessary but that no one has conducted the studies that would address such concerns.
Significantly, the definition of non-industrial work environment excludes vehicles. This may suggest an intent to exclude parking facilities, as IMPC members' facilities are the long-term and/or temporary facility where the non-covered vehicles are housed. Arguably, the housing of vehicles is a service other than that covered by the work space definitions in the regulations.
The regulation assumes without saying so that underground parking facilities that have employees station those employees underground at all hours. In practice, that is not the case. Often parking attendants are underground during a.m. peak hours and seldom underground after rush hour. The important point again is that since the hours of underground work have not been studied the regulation is premature.
Assuming the regulation were to be put into effect, it is reasonable to assume that operators would station fewer employees at underground parking facilities and/or decrease the number of hours they remain underground.
What does this federally imposed work force change presage in terms of safety and security? Arguably it would be wise to station guards to protect parkers every place where an attendant used to be and if the area were left unattended would patrons have a feeling of less protection?
The proposed rule cannot be made applicable to parking facilities because the following factors have not been studied, in our conclusion: (a) the type of facility, whether underground, ground level, above ground; (b) number of employees affected and number of hours employees are stationed in the affected area; (c) the technological feasibility, cost, responsibility, whether it be owner or operator, the safety of the users, the impact on the economy, the impact on federalism, the OMB cost benefit analysis and the impact of other regulations.
My colleagues and I thank you for your attention and we will be happy to attempt to address any questions you may have.
JUDGE VITTONE: Thank you, sir.
Ms. Kaplan?
MS. KAPLAN: Mr. Ivey, your members, do they all work in the service sector or are there any who work in an industrial setting?
MR. IVEY: Virtually all of our members are in the service sector. They are almost all public operations. A classic example of a member of ours would be, for example, the Washington, D.C. Department of Transportation, the Los Angeles Department of Transportation, the Department of Parking and Security at Ohio State University. Those would be typical members.
MS. KAPLAN: And you said you provide educational and technical services to members. Could you describe those types of services?
MR. IVEY: Yes, ma'am. We provide a series of 10 to 12 educational seminars each year, an annual conference, a monthly magazine, a number of technical publications to the members which may be statistical in nature. They may be relating to employee salaries. That sort of thing.
MS. KAPLAN: How many garages are owned, leased or operated by your members?
MR. IVEY: If you don't mind, let me ask Ms. Witmer to answer that question.
MS. WITMER: We assume that there are somewhere around 10,000 garages in the continental United States.
MS. KAPLAN: In the United States?
MS. WITMER: Yes. Not all of those are operated by our members but we have the majority of those folks.
MS. KAPLAN: So maybe 60 or 70 percent? Can you give me an idea?
MS. WITMER: I would say that's probably fair, maybe a little higher, 60, 65 percent.
MS. KAPLAN: Okay. And of the parking garages owned by your members, what percentage are outdoors, like surface parking or open parking decks? If you could give me a number in either square footage or by stall.
MR. IVEY: I'm sorry, I didn't catch the last part of that. We can give you the percentage that are open spaces but I didn't understand the last part of the question.
MS. KAPLAN: I asked if you could give me an answer by stall or by square footage but if not that's okay.
MS. WITMER: The percentage of the garages that are open air, that's what you're asking first?
MS. KAPLAN: Yes.
MS. WITMER: And that would be probably better than 90 percent open air. As far as stalls, the average in each garage would be about 500 spaces.
MS. KAPLAN: Okay. Are there currently regulations that apply to these environments?
MR. IVEY: There are a lot of state and local ordinances that apply to them, certainly. There may be some federal ones. Frankly, that issue has not come up.
MS. KAPLAN: And are these facilities engineered or designed to comply with the applicable regulations?
MR. IVEY: Sure. Yes. In most cases, with our members, that's particularly required because they are built by the cities themselves.
MS. KAPLAN: Well, which of those regulations relate to employee safety and health?
MR. IVEY: I would have to look that up and provide it for the record. It would differ, obviously, depending on where the location is and who is providing the service.
MS. KAPLAN: Well, do you have any idea just generally? Are there certain issues that generally tend to be addressed in these regulations relating to employees?
MR. IVEY: No. I wouldn't be able to answer that. Frankly, that question has never come up before. It's not something that we have collected information on.
MS. WITMER: What I hear, and I talk to our members daily as part of my position and I maybe take 300 calls a month, anywhere from one to 300 calls from our membership, and the questions that come up regarding safety of employees is more equipment-related, shoes, hats, that kind of thing, not clean air.
MS. KAPLAN: Well, of those calls you receive from members, could you give me any ballpark idea of how many relate to safety and health concerns?
MS. WITMER: A very small percent, probably less than 5 percent.
MS. KAPLAN: Can you describe the type of ventilation systems and other types of equipment that are present in parking garages particularly used to maintain air quality?
MR. IVEY: I certainly couldn't describe them in any detail. I can tell you that in regards to service facilities, there are none. In regards to open air structural facilities, there are few, if any. And in underground facilities, there are heavy duty -- certainly in newer ones, there are heavy duty air handling equipment certainly installed. I could not describe those for you. No.
MS. KAPLAN: Does your organization at all keep track of employee health complaints?
MR. IVEY: We do it as part of the overall information that we try to keep track of. Frankly, it has not come up. We have not seen any evidence of any sort of spikes in employee health complaints. It's just not something that's ever come up. And as close as we try to monitor our members, that's the sort of thing, for example, we would do a program on or a seminar on if the question came up and it simply hasn't come up.
MS. KAPLAN: You don't specifically ask for that information, then?
MR. IVEY: I don't recall specifically asking for it. No.
MS. KAPLAN: You say in your testimony that because underground garages are proximate to the elements the need for regulation is moot. Do you know whether there are national building codes that also adopt this belief or the general principle?
MS. SHEPARD: We follow BOCA codes, certainly. Also, if there's any chemical handling with operations, we follow OSHA requirements and all that. Is that what you're asking?
MS. KAPLAN: Well, I guess I'm asking about your feeling that no regulation is needed in this case because of the proximity of underground garages to the outdoors.
MS. WITMER: I think the answer is that since we have never had any problem, and I was in operations for six years, I was executive director of the Harrisburg Parking Authority in Harrisburg, Pennsylvania, Kim was at the Rutgers University, and I can tell you that as a practical matter of experience with 30-some employees, I never had any questions. My garages were all -- I had a few levels underground and the rest of them were above ground, I never had any problem at all with any kind of health complaints. Nor did I know, I started the Pennsylvania State Association for Parking and you tend to mind-meld on different issues, never have I heard air quality come up as far as sickness for employees or anything like that. Is that what you're asking?
MS. KAPLAN: More or less.
MS. WITMER: Okay.
MS. KAPLAN: Do you know of any underground parking garages being built without exhaust ventilation because they are proximate to the outside?
MR. IVEY: No.
MS. WITMER: No. If it's underground, it's going to have air exchange equipment.
MS. KAPLAN: You mentioned heavy duty fans running in underground parking garages. Are these generally kept running during all periods of occupancy or are they shut down
MR. IVEY: Ms. Jackson was just informing me she was at Rutgers University just before she joined our staff as Director of Parking, she has informed me that facilities they had, they were required to run those fans constantly.
MS. KAPLAN: Do you think that's generally true or does it vary?
MR. IVEY: I would not be able to tell you. It's not something we've surveyed.
MS. KAPLAN: Okay. Is there a possibility that you may be underestimating the number of workers involved in underground parking by saying that almost universally employees are stationed at ingress/egress positions near the outdoors? Specifically, have you considered valet service employees and patrolling security personnel?
MR. IVEY: I can tell you, for example, the number that we have given you, if anything, is going to be on the high side. The number you have given us in the regulation is much too high. We're talking about a total in the industry, the estimates we've made, of about 1.1 million people. Less than 10 percent of that is in any kind of valet operation and less than half that is in underground valet operation.
The trend universally in this industry for the last 20 years has been the self-park environment. Frankly, it's a matter of economics. It's much cheaper, obviously, to run a 500-space parking facility if it's not as labor intensive. There are also obviously fewer concerns about safety of the employees, you know, moving about in an environment like that. So it's just something that is really shrinking in terms of numbers and really the only place you would run into, there are really only two examples of running into major concentrations of valet operations and that is a few cities on the East Coast that are very concentrated, Washington happens to be one of them, perhaps Philadelphia, certainly in New York, would apply to that. And there are a few cases now recently, a more luxury sort of valet service is offered at airports. But that's usually an outdoor facility.
I cannot overemphasize the fact that because of this trend over really two or three decades to self-park, the number of employees in those facilities has shrunk dramatically.
MS. KAPLAN: You said in your testimony that it might be infeasible to retrofit underground garages to vent CO. Does this mean -- are you aware if you have members who garages do exceed the current OSHA PEL for CO?
MR. IVEY: I'm certainly not aware of any that do. No.
MS. KAPLAN: You also mentioned that more information is needed and that a survey should be conducted on existing facilities. Have you done any types of surveys?
MR. IVEY: Not on this issue, no. As I said a little earlier, it's just simply not an issue that has come up.
MS. KAPLAN: As far as IAQ problems in garages, infiltration of contaminants like diesel exhaust from underground facilities into adjoining underground facilities seems to be the most frequent problem. Would you feel that the building owner and not the parking garage operator would be responsible in this kind of situation for contaminants originating in the parking space?
MR. IVEY: I would not venture a speculative answer on that. I really don't have a position on that.
MS. JANES: Hello. I am Deborah Janes. I just have a few questions for clarification purposes.
Who maintains the ventilation equipment in those underground parking garages?
MR. IVEY: It varies across the board. In a typical example, and I'll ask my colleagues to correct me if I'm wrong here, in a typical example, if a municipality owns the facility, typically the municipality would maintain those facilities with their own employees or through the use of outside contracted employees.
In the case of a facility which may be operated by a commercial firm but owned by perhaps a commercial building or owned by a municipality, that could be across the board. It would depend on how the original management contract was written. I just wouldn't be able to answer that.
Let me simplify that. In the case of our municipal members, if they own the facility, they're responsible for the maintenance as a general rule.
MS. JANES: Are you aware that maintenance is generally done on those types of equipment?
MR. IVEY: Are we aware that maintenance is generally done?
MS. JANES: Yes.
MR. IVEY: I'm not sure what the question is.
MS. JACKSON: On what type of equipment? You mean air handling?
MS. JANES: On the air handling equipment in garages.
MS. JACKSON: I would assume absolutely. If there's air handling equipment, and that would be in an underground garage, that it absolutely would be maintained one way, shape or form.
MS. JANES: Do you have any information to support what you are saying about the maintenance?
MS. WITMER: We have maintenance seminars from time to time. There are also requirements usually set up by the city and the bonding agents that if things are not maintained that there would be a problem. Most of our facility owners also are checked out at least once a year by a consulting firm to just go through and make sure things are working properly.
MS. JANES: Okay. Getting back, do any of your members regularly monitor for carbon monoxide in garages? In underground garages.
MS. SHEPARD: I am aware that some do. My guess is virtually all do but I cannot give you that as a definitive answer.
MS. JANES: Would that equipment be part of the garage or part of the building itself? Meaning would it be part of the ventilation system in the garage proper or would it be a sort of device used to determine whether or not excess amounts of carbon monoxide were available for entrainment into the building?
MS. WITMER: It really depends on the building. There are a lot of garages that are free standing that really aren't connected to anything. Obviously, in those cases, if it is a total underground garage and they've got detection equipment, which they would have, to make sure things are running fine, it would be the responsibility of the garage part. If there's a building attached to it, I don't know, quite honestly, what the building people would do in that case.
MS. JANES: Okay. But that would be the maintenance procedures or the responsibility for that maintenance would be spelled out in the agreement between the parking authority and the building owner?
MS. WITMER: Right.
MS. JANES: Okay.
MR. IVEY: And perhaps the operator of the facility, too. The real point I think we're trying to make and we may not be doing it well is that the range of these agreements are all across the board. It could range from the owner to the operator to an outside agency, whoever it may be, and we can't give you a definitive answer on that.
MS. JANES: Okay. thank you.
JUDGE VITTONE: Does anybody else have any questions for this panel?
Mr. Gross?
MR. GROSS: Just one or two, Your Honor.
Thank you, Your Honor.
Good morning. My name is Richard Gross. I'm with the National Energy Management Institute and the Sheet Metal Workers International Union.
Just a couple of questions on your presentation.
Are there industry standards for acceptable levels of carbon monoxide and other pollutants in underground garages?
MR. IVEY: Not as adopted by our organization. There certainly are municipal ordinances that require that, state ordinances and perhaps even federal ones as well.
MR. GROSS: Well, other than OSHA and OSHA-like regulations, are there industry standards?
MR. IVEY: Not that I'm aware of.
MR. GROSS: Okay. What is the source of standards that architects and engineers would build new garages to? In other words, you're saying that newer garages, underground parking facilities, have air handling equipment, commonly the availability of work booths with the separately controlled environment, that sort of thing. When new facilities are built, to what standards are they built?
MR. IVEY: National building code standards. There are not -- this industry is a large one in terms of money but in terms of the organization of its related associations, it's quite, quite small. In our case, for example, our association does not adopt those standards. We're not of a sufficient size to provide that technical expertise, so we don't adopt those standards but the buildings are built to the same sort of national building codes that an office building or a government building would be.
MR. GROSS: Or any other facility would be built to.
MR. IVEY: Yes.
MR. GROSS: Are there any economic incentives one way or another not to build these kinds of booths with air controlled environments?
MR. IVEY: No. Not that I'm aware of.
MS. WITMER: No, not a booth. No.
MR. GROSS: I'm sorry. My question was sort of ambiguous. Economic factors one way or another, what would someone who is building a new facility, in what way would they build it concerning these air controlled booths?
MR. IVEY: Certainly the public image incentive. And that is that the thing ought to be attractive. The employee ought to be comfortable in it because if the employee is not comfortable in that facility he or she is going to be the primary representative of the organization which runs the garage to its customers and if that person is hot and sweaty and he can't breathe and the like, obviously you have concerns for the employee first and secondly you have concerns for his relations with the customer.
I can't think of any incentive for not providing that sort of booth or facility for a garage employee. Certainly you could argue that perhaps there is a financial disincentive because it costs a little more. In the case of our members who are municipalities primarily, that's just not of sufficient import to make it worthwhile.
MR. GROSS: If OSHA were to conclude that there was some sort of health-related problem among workers in underground garages would it be reasonable for them to at least require newly constructed facilities to have air controlled booths for employees?
MR. IVEY: I'd have to take a look at it. Obviously it would depend on how reasonable those regulations