OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, January 13, 1995
OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, January 13, 1995
UNITED STATES DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
PUBLIC HEARING
PROPOSED STANDARD FOR INDOOR AIR QUALITY
Friday, January 13, 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
American Federation of Government Employees
Howard Egerman 11083
Questions:
Ms. Kaplan 11090
Ms. Janes 11096
Mr. Rupp 11099
Judge Vittone 11107
Microeconomic Applications
Henry B. R. Beale 11112
Questions:
Mr. Gross 11155
Mr. Rupp 11164
Dr. Nichols 11262
Ms. Sherman 11270
American Federation of Government Employees
David J. Schlein 11272
Kirby Biggs 11280
Questions:
Ms. Kaplan 11288
Judge Vittone 11306
Powell Manufacturing Company
Tom Pharr 11310
Questions:
Ms. Kaplan 11319
Ms. Janes 11326
American Sightseeing International
Joe King 11331
Questions:
Ms. Kaplan 11337
Technacool, Inc.
Robert Edgar 11342
Questions:
Ms. Sherman 11355
EXHIBITS
EXHIBIT NO. IDENTIFIED RECEIVED
222 11308 11308
223 11309 11309
224 11309 11309
225 11310 11310
226 11310 11310
227 11361 11361
P R O C E E D I N G S
9:50 a.m.
JUDGE VITTONE: Good morning. We resume our hearings into the proposed rule on indoor air quality by the Occupational Safety and Health Administration.
We are going to do a little reshuffling today with respect to the order of witnesses. The first witness will be Mr. Howard Egerman.
Mr. Egerman, is that the correct pronunciation of your name?
MR. EGERMAN: Yes, it is, sir.
JUDGE VITTONE: Okay. And you are affiliated with which organization?
MR. EGERMAN: The American Federation of Government Employees, sir.
JUDGE VITTONE: Okay. Mr. Egerman will give his presentation and then be opened up for examination by any of the interested parties.
After that is completed, he will step aside and the other two representatives of the American Federation of Government Employees will wait to present their testimony later in the day.
After Mr. Egerman, we will then go to Dr. Beale, who will be our witness, and go through his direct presentation and examination by the parties and then go back to the American Federation of Government Employees.
Okay. If you are ready to proceed, Mr. Egerman, you can go ahead and make your presentation.
MR. EGERMAN: Thank you, sir.
My name is Howard Egerman and I am a health and safety representative for Social Security field offices. Today, I would like to briefly discuss with you why an indoor air quality standard is needed and why it's needed today, if not yesterday.
Before I begin, I want to show you what I wore for roughly two months in the fall of 1991 when I visited one of our federal buildings, the Western Program Service Center, which is at 1220 Nevin Avenue in Richmond, California.
JUDGE VITTONE: Excuse me a second.
For the record, this is what kind of device?
MR. EGERMAN: This is a respirator with HEPA filters. These whatever they are blue or purple or whatever it is, I'm partially colorblind so I don't know what this is. But this is a HEPA filter respirator and I had to wear this whenever I entered the building at 1221 Nevin Avenue in Richmond, California, our Social Security Administration.
I wore it with my hat for AFGE, my union, and my button. The reason why I wore this was the absence of an indoor air quality standard which resulted in an outbreak of Legionnaires disease which resulted in the death of two private sector workers and 13 individuals who came down with Legionnaires disease. And because of this outbreak, I got firsthand experience at seeing what a sick building was like and I will remember what I saw for the rest of my life.
It's hard to imagine when you think of a six-story brick building with a basement almost totally devoid of people, the only people you would see in this building were people who would wear this. All of us looked like we were Darth Vader's cousins. And the temperature in this building was about a hundred degrees. They had to have chicken wire so no pigeons would go into the building. No ventilation. No electricity. This was a sick building if there ever was one. And it seemed like time totally stood still. It was like a neutron bomb had gone off.
I went into that building first to retrieve material. We got the building closed. People in their haste, they left their glasses there, they left their job applications which is really important if you're a federal worker. They left their jobs, their keys, all kinds of things. Where there was a security guard, there was nobody. You had yellow newspaper stands. Time just stood still.
As strange as it may seem, the date this building was closed was September 13th, Friday the 13th, just like today. It was truly a sick building.
To give you some background, how it began, people started smelling a strange odor in the basement. My colleagues complained to management. A lot of people were getting sick, having the flu. Nothing would happen until September 11th we found out somebody died.
This was a building that Social Security had control over. A lot of people had respiratory problems. As soon as we became aware of it, the medical doctor in the building called the Contracosta Health Department. The woman had an autopsy. She tested positive for Legionnaires disease. The health department took blood tests of everybody who had been sick for more than three days and we closed the building for what we thought would be a weekend.
When it turned out she had Legionnaires disease, the building ended up being closed for two months. What happened was we had a trailer city take place in the parking lot. One trailer was for OSHA, one was for NIOSH, one was for Social Security.
People like myself who could go in the building to see what happened, we had to wear a respirator. What I basically did was observe what was going on, take pictures, because what the government had to do, and it cost them roughly $4 million, was set up a temporary payment center for roughly 1100 employees while this was taking place. Just an incredible situation. And they had news conferences every day.
So what had happened basically, we discovered, was there were all kinds of changes in the building. The building was built in 1975, which is the same year that the Legionnaires outbreak took place in Philadelphia at the Bedford Stratford Hotel. And there were protocols, the Wisconsin protocol, for cleaning up cooling towers.
Nobody knew anything about this because it didn't apply to the government, they didn't know anything about Legionnaires disease. And what also occurred was they wanted us as federal workers to get the work out. They deferred maintenance. In other words, if they wanted to clean the cooling towers, they had to shut down the building the entire weekend. They wanted us to clear claims. They wanted employees to clear claims.
In addition, they had new construction. What we found was ground zero where the two janitors died was the basement. They built training rooms, they put new walls there. They didn't change the ventilation system, they didn't change the ventilation system. The personal computers increased the heat load. They didn't change the ventilation system. We had all kinds of situations occurring. The ventilation system was not updated. It was a mess.
All the time, the bacteria were thriving, nobody could see what was going on. People complained. The people who were the healthiest in terms of breathing in that building were our smokers. At least they could go outside and get some fresh air.
It ended up the agency spent several million dollars cleaning the cooling towers, remodeling the building, replacing the carpet. The building was a mess. We had standing water all over the place. It was just unbelievable.
Mid December 1991, the building was reopened. While this was occurring, we checked out for Legionnella, the bacteria that caused it, in all our payment centers. The one unique thing about our building was they built three buildings at the same time, one in Philadelphia, one in Chicago. And the strange thing about our building is here we are in California, we have snow melting equipment on the roof of our building. We never get snow in California. At least whenever we do we go outside and look at it and it melts when it hits the ground. That was affecting our heat load.
Well, what they did was they started taking care of preventative maintenance situations. But I've encountered a lot of similar situations in the other 1300 buildings and what I mentioned in my statement, I'll just briefly summarize a few of them. I've got additional material on them.
We had the Alan Bible Building, which was in Las Vegas and in Las Vegas, a lot of hot temperatures. This building was designed for doctors and lawyers. The government takes it over. It can't deal with the heat load. In fact, we have hot and cold spots in that building. It could be 115 degrees outside and we have people wearing sweaters inside. I got a NIOSH report on that.
Hugo, Oklahoma. In the Hugo, Oklahoma building we have pigeons which are basically living in the ventilation system. For seven years. A lot of our federal employees are very, very dedicated people. Seven years. And when they cleaned up the building, we have seven years of dead pigeons and pigeon waste being recycled in Hugo, Oklahoma.
Placerville, California, we've got another building closed there. It was over a gold mine. Roughly 30 percent of the employees in that office had elevated levels of C02. That's Placerville, California. We got that building closed in May of '94.
Beaverton, Oregon, they had a nearby beauty salon, nail polish remover. And the ventilation system would suck in the smell of the nail polish remover. People were getting sick. A member of management passed out, they closed the office.
We can go on and on and on. Basically, as I said in my statement, we need written operation plans, the issue of seasonal shutdown, renovations, building owners must be aware of changes. It's really important to have visual checklists and maintenance plans. In other words, as a result of Richmond, situations like this have taken place. Having designated people for IAQ compliance is also important, as well as written records of complaints.
I can go on and on and on about what happened and Richmond and why it's important but the importance of what happened in Richmond is we cannot see, we do not know, what's happening in buildings we visit. We do not have any idea. Our commissioner for Social Security, Shirley Chader, has come down with this little customer service pledge for our customers. She says I'll give you a safe and healthy place to visit. And the same thing could be said of any building we go to, whether it's a department store or it's the Department of Labor here, whether it's National Airport where I have to go to take off to go back to beautiful Oakland, California. We don't know.
It's really important that we have an indoor air quality standard so people will not have to wear respirators like I did in order to go into a building.
And one thing that all of us do, whether we're union, whether we're management, whoever we are, whether we work for the government, the private sector, is every single day we inhale and exhale. Every day we inhale and exhale. Having a standard, having an OSHA indoor air quality standard, will enable us to get through every single day so that we can live as long as possible and make as much contribution as possible.
I still remember what our commissioner said about the two women who died who were not federal workers but still people remembered at workers memorial day, basically she said it was really a tragedy that their lives were cut short and it really was, that had to breathe this bacteria in the aerosol form and that they're no longer alive.
And I think it's really significant, if you look at what happened, when you see what a building like the Richmond building looks like when it's devoid of people, and you see that the one thing that really is important for all of us is the human quality and that's what OSHA should be about. That's what indoor air quality standards should be about, that's why we need one, so that now when I go to work in Richmond, I wear my badge, I don't have to go like this.
Thank you, sir.
JUDGE VITTONE: Thank you, Mr. Egerman.
Ms. Kaplan?
MS. KAPLAN: Was there an investigation undertaken of the Richmond building?
MR. EGERMAN: Yes, there was. All kinds of investigations by just about everybody you can think of.
MS. KAPLAN: This was after the Legionnella outbreak?
MR. EGERMAN: Yes, indeed.
MS. KAPLAN: And what did they find?
MR. EGERMAN: There was literally no smoking gun. In other words, the government spent a lot of money. Their first assumption was that it was the cooling towers and there's about 30 different strains of the bacteria. I think they were trying to match the types of cultures, what the call Knoxwell and Bellingham were two of them. They didn't find a definitive cause of it but it's believe that it was in the tepid water system of the building.
We did have a re-entry protocol which was adopted by OSHA for the last year and we continue to do that, whenever anybody is absent from work more than three days, their blood is tested for the presence of the bacteria. We did, have by the way, all the employees who wished to be tested, tested for that.
MS. KAPLAN: And were there recommendations made for improving the building?
MR. EGERMAN: There were a lot of recommendations made for improving the building. The cooling towers used to be dirty. Now, it is so beautiful you won't believe it. Every time I inspect that building, I just love going in the cooling towers. It's cement -- the building is extremely clean.
What we do when we inspect the building is we ensure that we have everything at least five feet away from all the air handling units. When we inspect that building, we do something which we try to do for every single building and that is look for standing water. In other words, I look for things like flower pots. We found things, that building was so dirty, half-empty Coke cans, standing water all over the place, all kinds of places.
So there was an entire plan and we in terms of our committee, and it's a joint committee and I'm really pleased that management works with us strongly. Nobody wants to see anybody sick. I mean, that's our first situation. So we have definitely followed the re-entry protocol and if we do anything, we bend over backwards.
But the unfortunate thing is a lot of times, I call this management by death. In other words, you're doing the right thing because somebody dies. This should not happen and that's the reason why a standard is needed.
MS. KAPLAN: Had you complained to management prior to the outbreak of Legionnella?
MR. EGERMAN: We complained and we complained and we complained and we complained. We said this really smells weird. We took the deputy commissioner down there and he said it's no problem. I mean, we complained and complained and complained and we went through all of these meetings. And one of the real problems that can happen a lot of times with Legionnaires disease and sick building syndrome, unless it's Legionnaires, something you can find, so many things are unknown.
I was there at the meeting and I never saw so many people wearing suits in my life. It was amazing. We had these people from the state health department and everybody in the world. One guy from the state health department said just dump 40,000 gallons of Chlorox down the system, we don't know what it is, maybe that will make people happy. In other words, they thought some of the employees were just imagining it, in all honesty. That's what management sometimes will do.
MS. KAPLAN: So what steps were taken to improve the building? It sounds like there is now regular inspections?
MR. EGERMAN: Right. Okay. What steps, there was a protocol. The government spent $4 million basically, $3 million to $4 million, in terms of cleaning up the building. And we did the entire cooling tower situation. I have some material here which I will leave. At one point, we thought part of the problem was we had the earthquake and some of the tiles had fallen into the cooling tower. We thought that had occurred. The rebuilt basically everything. Everything was cleaned up. The building was dirty. We have new drapes, we have new carpet, we have new everything. We went through every single faucet in that building, every single sink. That's why I wore my respirator. I mean, we tagged every single urinal. Everything. Everything. We looked at everything for the source of Legionnaires. Everything was cleaned up. And when we inspect, for instance, I saw the showers in the shop area, there was standing water and we got rid of that right away. In other words, they are extremely careful and our agency has attempted to follow the Richmond example because they found presence of the bacteria. Legionnella is basically ubiquitous. It exists everywhere. They found it in Philadelphia. They found it in Chicago. They found it in Albuquerque. They found it in Wilkes-Barre. They found it all over the place. It just was the fact that there was some circumstance that people got it. And none of the 13 people, they didn't know they had it because two things happen if you have Legionnaires disease, either you get better or you die. The 13 people didn't know. They thought they had the flu. They did not know that they had Legionnaires disease.
MS. KAPLAN: And you feel the OSHA standard might have prevented --
MR. EGERMAN: I think the OSHA standard and a greater knowledge of what the requirements are. In other words, one of the real problems we had is management was totally ignorant of the Wisconsin protocol. They didn't know about Legionnaires disease. They didn't know. Because it happened after the building was really constructed. I think having something will make building owners -- I'm not just concerned about federal buildings, I'm concerned about all buildings. You know, whether it's the hotel I'm staying in.
In other words, that's what happened to the Legionnaires and now I've joined the American Legion so I'm a Legionnaire, too, but any building, any building you're staying in. I stayed at the Quality Hotel to come over here. I don't know what the ventilation system is there. It's really important any place because we can get it anywhere. We can get it anywhere if we are just unfortunate enough to be breathing it in an aerosol manner, if we meet the risk factors. And that's what I'm concerned about, not just for myself but just for anybody. Just for anybody.
MS. KAPLAN: What's the Wisconsin protocol?
MR. EGERMAN: The Wisconsin protocol is a series of steps that people are supposed to be following in terms of cleaning cooling towers. That's what is the Wisconsin -- because it happened some place in Wisconsin. We learned a lot because we hung around the trailers, I met all the top people at OSHA and NIOSH and everybody else. To me, it was one of the greatest learning experiences I ever had but it was a real tragedy.
Every time I think of it, you know, I have some additional pictures and stuff I could submit of that sink where these poor women, I mean it really affects me every time I walk in the basement. You know, we learned a lot. I think it was a teaching tool. The tragedy is and what alarms me is a lot of times it will take something like a death to really get people organized or thinking about safety issues and that's what I'm concerned about, it should not take that. It should not take that at all.
MS. JANES: Hello. I'm Deborah Janes.
With the outbreak in Richmond, you're going to submit to the record the reports from that building?
MR. EGERMAN: The only thing I will submit, I have some additional information, I got a couple of Xeroxes of pictures that I have showing certain things in the building like the sink. I have also to submit something about the Las Vegas building, the Placerville building, and I have a few pictures, let me find them, of my national president wearing his respirator when he inspected the building.
MS. JANES: Okay. So there were 15 people who were diagnosed as having Legionnaires disease?
MR. EGERMAN: Thirteen. Thirteen.
MS. JANES: Okay. So two of the 13 died.
MR. EGERMAN: When you count the two who died, it's 15.
MS. JANES: It's 15?
MR. EGERMAN: Yes.
MS. JANES: Okay. And you said that a certain number of individuals were tested?
MR. EGERMAN: Roughly over 500 people were tested, including myself. Because that's one of the situations that our union dealt with and we were able to work with one of our HMOs, Kaiser. In other words, I have a picture, I have a couple of things from the Oakland Tribune, a picture of a lady here who is getting a blood test. This is the front page of the Oakland Tribune, our newspaper. And I got a blood test, too. In other words, you're tested for antibodies.
MS. JANES: Right. What were the results of that testing?
MR. EGERMAN: The results of my test?
MS. JANES: Of the testing of the 500.
MR. EGERMAN: The results of the testing were roughly about 33 people tested positive and the 13 other people were the ones who basically were the ones who had it. In other words, you have elevated levels. And there were a number of different people who had relatively high levels. One of them was the floor person or the floor man, Orville. He had real high levels of the antibody.
MS. JANES: Were any investigations conducted of this building prior to the deaths?
MR. EGERMAN: Not really. I mean, there were other types of inspections but nobody had really done anything in terms of the air quality. One thing that had happened is that our union had submitted to the commissioner requests to have the HVAC system upgraded because we said all along that it could not deal with the increased heat load because one of the situations that occurred is even though we had fewer employees we had personal computers on everybody's desk and printers and everything else that was increasing the heat load for the building and people were just plain uncomfortable.
MS. JANES: Do you know if the GSA is following the Wisconsin procedure currently?
MR. EGERMAN: Well, Social Security, GSA gave the building to Social Security, Social Security has it. We are definitely doing it. In other words, I can assure you they're doing the Wisconsin protocol.
We just did a follow-up inspection, I guess it was six or eight weeks ago. As I said, I will not turn down any opportunity to go out to the cooling towers and the basement or anything else because I really like to check the building out. You know, I spent so much time in the building, I had dreams of the building, just thinking of the building. The building really fascinates me. They definitely are. They definitely are.
MS. JANES: Okay. Thank you.
JUDGE VITTONE: Does anybody else have any questions for this gentleman?
Mr. Rupp.
MR. RUPP: Mr. Egerman, my name is John Rupp and I represent a number of independent scientists in this proceeding who have filed notices of intent to appear on behalf of the Tobacco Institute.
I am wondering whether you have access to or know where OSHA might obtain copies of the test reports on the building.
MR. EGERMAN: I believe what you can do, sir, is you can check with the Region 9 OSHA people. And it was also my understanding that they were rewriting the OSHA manual as a result of what happened in Richmond. Frank Straushein is the regional administrator and the OSHA office is at 71 Stevenson Street.
MR. RUPP: I appreciate that suggestion. If there is an outbreak of Legionnella or a suspected outbreak of Legionnella or Legionnella problem in a building, is it your experience as an AFGE member that NIOSH or the local OSHA office rather frequently would be called in or become the repository of records concerning the incident?
MR. EGERMAN: My understanding is and my belief is we were really fortunate because for one thing we have a real good union with AFGE and when we negotiated our contract we have the right for OSHA and NIOSH to come in and so we are probably a lot more lucky than a lot of people who may not be lucky enough to be a part of an organization that is affiliated with the AFL-CIO.
MR. RUPP: So whatever the Washington OSHA staff may find in Region 9 or at other OSHA offices around the country may not give them a complete picture --
MR. EGERMAN: My understanding is that they did rewrite the manual and that's one of the things that we have talked about, is basically a lot of the things that happened in Richmond have had a major impact.
MR. RUPP: All right. But it's your understanding that actual test reports would be found at the OSHA regional office.
MR. EGERMAN: Yes, sir. Yes, sir. And they're really a good group of people.
MR. RUPP: Okay. Have you had an opportunity to read the portions of the Notice of Proposed Rulemaking in this proceeding dealing with microbial contamination?
MR. EGERMAN: It's been a while because I've been scheduled and rescheduled so many times to come over here.
MR. RUPP: Well, I reviewed it again this morning and let me give you a copy, which I happen to have, and I've marked this section.
(Pause)
MR. EGERMAN: Yes, sir.
MR. RUPP: What I've shown Mr. Egerman is the material that appears on page 16,037 of the Federal Register notice.
And if I could direct your attention, Mr. Egerman, to the bottom of the left-hand column and the top of the middle column. Obviously the provision here dealing with microbial contamination is rather brief.
Now, maybe you could help me to understand this provision and, as I ask you these questions, what I particularly appreciate is any suggestions you might be able to offer to the OSHA staff concerning improvements or refinements in this provision.
The provision dealing with microbial contamination requires routine inspection for and promptly repairing water leaks that can promote growth of biologic agents.
There is no definition of routine. Now, if I were an employer and I were to say, well, I routinely inspect my buildings every two years, that's routine for me. If you as an AFGE member with responsibility in this are, what would you turn to in this provision that says that two years does not qualify as routine, two years qualifies as negligent?
MR. EGERMAN: What I would turn to basically is our requirements in both the executive order and my contract. In other words, the executive order requires inspection at least once a year. My contract is twice a year and what I would do, sir, is I would really spell it out.
MR. RUPP: That's in your contract.
MR. EGERMAN: That is in our contract. It's also in the executive order which is signed by President Carter.
MR. RUPP: All right. And that requires inspections twice a year --
MR. EGERMAN: At least --
MR. RUPP: Let me finish my question, otherwise, the record is going to be a jumble here.
MR. EGERMAN: All right.
MR. RUPP: That requires inspection for microbial contamination in AFGE facilities twice per year?
MR. EGERMAN: Okay. What the contract does is it requires an inspection twice a year. And what I would say as a proactive person is I would try to ensure that it happens twice a year. A real problem that we have in the building is we have these real strange landlords. I mean, that was part of the problem we had, for instance, with Hugo, Oklahoma where we had the pigeons in there for seven years, is they never did it.
MR. RUPP: Right. So the first suggestion you would make in helping to ensure that this provision is successful is defining the word routine.
MR. EGERMAN: Yes, sir. Yes, sir.
MR. RUPP: All right. And I take it that's a particular problem because we're not only talking about AFGE members in buildings owned by the Federal Government but we're talking about AFGE members in buildings that are owned by others.
MR. EGERMAN: Leased buildings, sir. Yes.
MR. RUPP: And AFGE members in multi-tenant structures as well.
MR. EGERMAN: Yes, sir. Yes, sir. In other words, sir, I deal with like roughly 1300 to 1500 different types of buildings. That really concerns me because I think about any office building I may go into for any purpose.
MR. RUPP: Look at this provision again, if you would. I don't see any inspection protocol here. That is, it doesn't really tell me what is to be inspected, how the inspection is to be done, whether any tests are to be conducted, what tests are to be conducted, whether any certification of the laboratory's qualifications are required, any notification to potentially affected employees of the results of the tests and on and on. Do we also not need some sort of protocol here, at least of a minimal sort, to tell people what they're required to do and to inform employees of the kinds of protections so far as microbial contamination is concerned, the kind of protections to which they're entitled?
MR. EGERMAN: I definitely agree, sir, and I think that's one of the real functions that we also have for having union representatives that people belonging to unions such as AFGE and other AFL affiliates is that one of our major functions that we perform is to inform people about what is happening in their building and I think the more people, any person knows, about what's happening, because the real problem, I left the book at my chair over there but I read this book called Anatomy of an Epidemic about what happened at the hotel in Philadelphia when Legionnaires first broke out, nobody knew and that's basically what was happening in terms of Richmond, this bacteria was just growing and multiplying. Nobody knew.
MR. RUPP: You'll also note here that the provisions on microbial contaminations are triggered by the notion of inspection whenever it occurs, if you look at small paragraph (i) at the bottom of the left-hand column. The obligation to cure or repair, take remedial steps, occurs when microbial contamination is found, either as a part of regular or emergency maintenance. There is no provision here for an employee or a union representative to cause an inspection to be made because they have spotted something that is clearly out of the ordinary. Do you believe that this provision ought to be tightened to give employees some rol