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OSHA HEARING REPORT DATE: PRIVILEGED AND CONFIDENTIAL ATTORNEY/CLIENT PRIVILEGE September 19, 1994 REPORTER: ALLEN R. PURVI~I: SHOOK, HARDY & BACO~..~i At i0:00 a.m., September 20, 1994, a U.S. Ad, ministrativ~i Law Judge will convene what will likely be the lengthlest and mos~i~j significant hearing on a proposed workplace rule in the history the .Occupational Safety & Health Administration (OSHA). Thei!~i purpose of the hearing is to gather information and opinions ab ut~,~.:~ the agency's proposed standard on indoor air quality (IAQ) ~: including its proposal relating to environmental tobacco smoke'~,,~ (ETS) . This initial hearing report will provide backgroun~ information and will describe the format and procedures of hearing. ~.-.~ Background of ProPosed Rule ~" The history of the proposed rule dates back to May, 1987, when three public interest groups petitioned OSt~ for a Emergency~. Temporary Standard to prohibit smoking in most indoor workplaces.~.~.~ At that time OSI~ determined that available data with respect to'~ exposures were insufficient to demonstrate the existence of "grave danger," and refused to enact temporary standards. In ASH filed a lawsuit challenging OSHA's denial of its petition a Emergency Temporary Standard, but this petition was denied by a ,. federal judge _on the basis that OSHA had reasonably determined it could not sufficiently quantify the workplace risk associated with~ tobacco smoke to justify issuing an emergency standard. In September 1991, OSHA issued a Request for Information~<.~ (RFI) on indoor air quality which generated over twelve hundred,~ comments by interested persons, groups, unions and industries.' Claiming that the majority of comments favored OSHA's regulation of~ indoor air quality, on April 5, 1994 the agency published the proposed rule that is the subject of this hearing. The proposed rule (which can be found in the Federal,~ Register, Volume 59, No. 65, page 15968) consists of two main sets:?~ of provisions -- those dealing with general indoor air quality:!i 51268 ~39

issues and those dealing with environmental tobacco smoke. I~! smoking is to be permitted, the proposed rule would requlre-~i designated smoking areas which are to be separate, enclosed rooms~ exhausted directly to the outside. In accordance with its usual procedure, OSHA solicite~ written comments which were filed with the agency by August 13..~i Persons wishing to appear and testify at the hearing had unti~i August 5 to file their Notice of Intent to Appear, and theif~ written testimony had to be submitted to the agency by August 13 As of this date, 109,000 separate written comments hav~ been received and docketed by OSHA and the agency acknowledges tha~[~i there are tens of thousands of additional comments which have bee~ received but which have not yet been docketed. Some observers~i estimate that the final total may exceed two hundred thousan~i separate written comments. Experts in the area advise that th~i previous record for written comments was approximately 3000, which~ were received in response to the agency's proposed blood-borne~0~ pathogen standard. Seven hundred and ninety-four individuals hav~ filed Notices of Intent to Appear, a number which is also believed~ to be a record. Individuals representing labor unions, restauran<~ associations, health organizations, as well as the tobacco~ industry, have indicated their intention to appear before the~ Administrative Law Judge and the OSHA panel. In response to th~sz overwhelming interest, OSHA has recently extended the hearin~ through the week of December 5, 1994 • ~earing F~rmat and Procedure~ The hearing will begin at 10:00 on September 20 with statement of the proposed rule by an OSHA official. The first two~ days of the hearing will be held in the Andrew W. Melon Auditoriu~ on Constitution Avenue in Washington, D.C. The remainder of week's sessions will be held at the Department of the Interior~. Auditorium. The location of subsequent sessions will be announcedi~ daily. The auditoriums are being used to accommodate th~! unprecedented number of potential witnesses and observers. Administrative Law Judge John Vitone will preside at th~ hearing. However, various OSHA officials will also sit on the~ panel with Judge Vitone and will participate in questionin~ witnesses. The following OSHA individuals are currently expecte~i to be on the panel. Sue Sherman, OSHA Attorney John Martonik, Acting Director of Health Standards Debra James, ETS Project Officer Sheldon Weiner, Office of Health Standards

It is also anticipated that a representative of OSHA's pollcy~i office and the regulatory analysis office will be members of panel In stark contrast to a lawsuit, this hearing has th~ stated purpose of information gathering and clarification. It an informal administrative proceeding rather than an adversaria~i lawsuit. Therefore, standard rules of evidence will not apply an~i information will be received into the record regardless of relevance or foundation. The ultimate goal of the hearing is to:~ gather information to enable OSHA to formulate a final version the rule if they deem that to be appropriate in light of the~i evidence and comments received at the hearing. After OSHA's opening statement and explanation of th~i rule, the OSHA representative will be subject to questioning by any~i individual who has properly filed a notice of intent to appear.~~i Technically, each of the 794 individuals could take up to ted~ minutes to ask questions of OSHA's initial representative, the OSHA panel, and any witness who appears at the hearing. It is the~ function of the Administrative Law Judge to prevent redundancy!! while permitting legitimate questioning of each witness whG[b appears. Individuals asking questions may not use that opportunit~ to present their own testimony, thereby eliminating classic "cross-~ examination." Extensive questioning of any witness has th6 potential for delaying or extending the hearing beyond it~ scheduled completion date of December 5. At the conclusion of the hearing, the record will remai~ open for 60 days to receive additional data and information. A 30~.~ day period will follow during which interested parties may file~ post-hearing briefs in support of their respective positions on the~ proposed rule. No reply briefs will be permitted under OS~ procedures. OSHA is expected to issue a revised rule in 1995 based o~ the information produced during the hearing ~process. Th~ publishing of the revised rule begins anew the comment/hearin~ process described above. When and if a final rule is adopted by~ OSHA (experts predict it could take as long as eight to ten years) a challenge to the rule in federal court is likely by one or mor~ parties who are dissatisfied with the rule. Every rule propose~2 and adopted by OSHA has been challenged in court. ~gbacco Zndustry ~nv~!vemen~ Philip Morris, R.J. Reynolds and the Tobacco Instltut~ will actively participate in the hearings both in ~erms o~ presenting testimony and questioning witnesses. Representatives o~

Philip Morris are tentatively scheduled to testify on Friday,0~ ~ September 30, with repre@entatives of R.J. Reynolds tentatively~i scheduled to testify on Thursday, October 6, and Friday, October All witnesses have prepared and filed their testimony with agency, and their oral testimony will follow the prepared!~I testimony. In addition to the tobacco industry, the Building Owners.~! and Managers Association (BOMA) has taken an active role in<!~ opposing the proposed regulation although their opposition is not~i based on the ETS provisions. Media Attentio~ The conduct of this hearing is expected to generate constant level of national media attention. Sunday's Wash Post carried a major story describing the hearing, and the New Times has also assigned a reporter to the hearing. This morning OSHA, the Coalition on Smoking or Health,;~i and Philip Morris held a series of press conferences for the media..~ Philip Morris' press conference was well-attended with nine\ television cameras in place. Brennan Dawson of the Tobacco~ Institute; Dr. Richard Carchman of Philip Morris; and Patrick;~ Tyson, an attorney and former Acting Administrator of OSHA,~ represented Philip Morris. Tyson explained that in his opinion~ OSHA has exceeded its authority because the U.S. Supreme Court has~ determined that OSHA can only regulate a siunificant r~$k -- not ~ ban a product to prevent ~ exposure He explained that in the~ past OSHA has determined "permissible exposure limits" for various~ toxic substances but the current proposal would violate OSHA'_~ authority by establishing a "zero exposure level" for environmental~ tobacco smoke. Dr. Carchman pointed out the numerous weaknesses in>~ the scientific basis for OSKA's proposed rule, while Ms. Dawsork~2~ emphasized the ability of employers to resolve any workplace ETS.. problems without resorting to additional federal regulation. Sghedule for September 20 ....~ After OSHA's opening statement and explanation of rule, Dr. Phillip Morey is the first witness scheduled to testify~ on the agency's behalf. The remainder of the week will feature~..\"~ testimony from physicians and anti-smoking activists such as~ Stanton Glantz. 51268 23@}2

PRIVILEGED ArID CONFIDENTIAL ATTORt~Y /CLIENT PRIVILEGE DATE September 20, 1994 REPORTER: ALLEN R. PURVIS SHOOK, HARDY & BACON OSRA's administrative hoa~ing began on schedule this morning but that was the last thing that occurred on schedule ~"~ today. Despite sxtend£r19 the 0ession into the evenln9 hours, ,3udge Vitone still has not been able to compl~te the first item on the .~ agenda -- the questionin~ of the O$~A panel by interests4 parties- - and that exercise will resume t0moErow morning. Zn light of the length o~ today's session, the number of questioners and the variety of topics covered, this re~ort will be limited to the highlight~ of today's session. Upon entering the Melon Auditorium, one ie presented Two lon~ table meeting in a V are on the reck, carpeted stage. 3udge Vi~one's e~ller table sits a~ the end oE the V, and the OS~A panel members sit behind the table on the riuht. The table on the left is reserved for witnesses. Judge VEtons, who wears a business suit rather than a black, judicial rob~, opened the proceedin~e with brief remarks. He des=Eibed his ~ob as ensurin~ that a ~air ~earing o£ .veryone's views would occur, and he briefly discussed some of this informal he~rin~'s guidelines. The ~udge ~hen turned the hearing over to John MarConik and Michael Sxlverstein ~Director of Policy for OS~A), who p~ooeeded ta introduce the other OSHA panel members. These members included Debts James, who is an epide~iologist and the pro~ect sirius= for this regulation. Other pane~ members included a toxic~Iog£st, a vent£1.tion engineer, = mechanical engineer. Dr. Ja~es Repace, a physicist "on dstaal to OSHA from ~he EPA," was also intr~uced. Susan She~an and Susan Kaplin, £r~ the Off~=e of the Solic£%or, ~pl.~ea the panel. The vast 51268 2343 a surrealistic sight. This ornate hall has massive columns down each side and across the front. A small indented alcove at the end of the room, and the judge and OSHA panel members were ~war~e~ in the ~i££~-£oot-coilit~ roe=. ceilings ~d "#~is ~e inlaid with grid trim and massive chandeliers han~ fr~ the ceilin~ and the atmosphere zs further enhanced by four spotlights used to ill~n~t~ th~ ,~age ~hile the re~ai,~er auditori~ remain, in various degrees of

and 5~s wi~h f~equen~ and s~e~imes frantic con~'~nces wi~h cem~nder of the ~ne~ meters. ~.~ Mar~onik b.gan by reading a ~repare~ statement, which~ heavily emphasized the prel~in~ nature of t.h~. propo.ed rul~ the statement e~lained OS~'s regulatory mandate, a review proposal's develo~ental hisser>, OS~'s ~ro.p,ctive of IAQ as health issue appropriate ~or regulatezy action, and OS~'s worke:s. ~on~k stated that it was OS~'s prel~na~ view IAQ causes a significant level of preventable disease in wcrker~, and OSKA', proposal would require all employers to designate Vii individuals to coordinate IAQ activity within the employer's place of bu,ineas as veil a, with any applicable buil~ing management~i.~ Martonik insisted that the proposed rulein n3 way prohibits individuals from smokin9 but only restricts where they .my smo~ to protect non-smokin9 ceworkers from the adver.e health effects ETS. He claimed that it was not the intention of OSKA t= workers from usln~ a legal product even if it ~ harmful to user. He est~mated tha? ~he proposal would affec~ 4.4 milllon~i buildings and 70.7 m/llxon workers. ~e estimated the number employees expose~ to indoor air pollution to be 21-2 million, the number of buildinss with IAQ problems to he1.4 million. Marronlk claimed tha~ GS~A's preliminary estimate of the annua~ cost of compliance with th~ IAQ s~andard would be $8.1 billion~ of which the most costly provision is $8 billion far the buildin~ system's operati~n and maintenance. He claimed the cost ~or eliminating exposure to ZTS is estimated to range from zero dol~lars to 68 million dollars dependin~ o. whethe~ employers establish~ smoke-free workplaces or ~uild designated smokin~ areas. A~though Martonik concluded hi~ ~tat~ent by claAmin~ that a limited =mount of time was available for q~Aes~ionlng t~ OS~A panel, the judge t~ok a very lenient position with respeo~ to the length of time he would allow for examining the OSHA Judge Vitone began by askin~ al] interested ~arties who lesirei~to ask questions of the OSHA panel to stand and approximately 12 individuals did so, includin~ several on behalf o£ the tohacc6~ industry At approximately I0:50 a.m., Ted Grossman o~ Jones y Reavis & Po~ue, rep=esen~in~ R.J. Reynolds and other individu~s who had filed proper ~Ioti=es of Intent to Appear, began his examination of the panel. Grossman questlomed whether a work~ could sit in his ~ office with his door closed and s.~oke a cigaret~o, ~o which Martonik replied in the |~egative. Notin~ the proposed regulation anticipated no losses in work or productivity and perhaps even some gain, Grossma~ wondered whether OSHA had allowed for smokers leaving the workplace to go to 51268 2344 .~, "~2

.rooking lo, nge or outside the building, and Martonik r<~plied tha~i this had not been considered. Next, Grossman suggested that smokers may lose concentration and develop anxiety ~f prevented from smoking, which could result in a loss of productsvzty rathe~i than a ~ain. Grossman then su~geste~ that OSRA was imply~n~ tha~i cigarettes were no~ addictive in l~ght of their proposed regulation, but Dr. Silverstein that denied any such made b~ the agency. Grossman questioned why OSIIA zade no attempt to characterize the level of risk ~ttr~but,ble to ETS e~posure e~ce~ with respect to fun, cancer and heart disease. Marton£k i~siate~ that the st~£f had ~eviewed =~i th~ a',a~l=~le scientific papers concluaed t~at they were not adequate to propose a qunntitative risk for diseases other than lung cancer and heart disease. At this point, Martonik stated for the first of times what is obviously 9oing to be a frequently used "safe during these beatings. MarT.onik insisted thac the ~roposed was very preliminary and the purpose of these h~arin~s was to the assistance of the public and interested industr~ observers that OSHA could pr~uce a better ~inal rule. Throughout the whenever tough questions came to the panel members, they would retreat into the "safe harbor~ ~nd appeal to the questioner help in reaolvln~ ~hese M~rtonik dies,reed with Gros.man's assertion that the U.S. SUpreme Court in i~s Benzene decision required OS~A to quantify the risk in all .tanderde. Mart0nik e~pressed the vie~ that the quantification of the risks for lun~ cancer and heart d~sea.s excused Uhe agency's failure to ~ntify the risk for ot~er ~Iseases and demonotrated a eu£~iclentl~ s~ni risk to ]usti~¥ action in the form era proposed rule.ficant ~oting that ~ince companies have adopted private smoki~ policies fewer smokers are being exposed to smaller amounts of each day, Gross~an asked wh~ the agenay was relyiug on workplac~ smoking date, which was several years o14, rather than what he =untended would be lower current figures. Martonik feebly that the agency tried to use the bee~ available evidence. Grossman ne~ turned to %he 32 ET~ studies and began atta~k~n~ so~e o~ ~he methods OSHA use¢~ in h=ndlln9 these studi~. Grossman accused the agency of "rounding up" with the effect of si~nifiuant1~ increasin~ ao~e o£ the mathematic.l figures. Martonik promised to checkon how those figures were handled an~ report back. GEoseman no~ea that the abilit~ o£ the public to comment on the propo.ed rule was llm~ted by the quality of the ~ta in the regulation. He noted that if ~.here were math errors, "round£n~ up" errors, or assumptions in ~he studie~ that were

to eneble it to properly commertC, M~rtonik indicated that the ~i agency had tried to do its best and acknowledge4 that it could h~e overlooked some matters, but he was optimistic that these hearing.: would help identify any of those problems. At approximately 11145, OSHA Attorney Sherman to the ~udge t~t othe~ individuals wanted to question the and perhaps it was a good idea to p~stp~ne Grossman°s further questioning. The jud~ generally a~reed and ~g, in asked tha~ individuals wish£ng to question the ~an~1 ~t~nd. A representati~ of the National License Beverage Association asked several quostlons, including whether OSHA regulations ,uch as that helng proposed would npply to indian reservations and the clsinos that were "popping up." Martonik did not know the answe~ to this question and prom/sed to ~et back to the ~entlema,. The next questioner was Anne Morrow Donle¥ representing; the Virginia Group ~o Alleviate Smokin~ in Public. Hs. Donle~ wanted to know whether she would be able to ~sk questions of tobacc~ company rspresentatives b, cause "they have re£use~ to us information in ~he past." She also tried to ~et the panel to insist o~ inquirin~ of each witnes~ as to the e~tent o£ tobacco compan~ contacts ~ut Martonik indicated that this ~ould not ~e ~equired. Donley also wan~ed the panel to look a~ "economic ~ckma i bl~ li~g" in. arrivin~ a~ their decision ~nd tried to 9ire tha~ panel several examples of wh~t she saw :s improper conduct by th~ tobacco industry such as boycotting non smoking restaurants. concluded b~ begging the panel not to exclude taxis ~nd limousin~ ~r~m ~he ~=opose~ r~ulat~on because ,ens~ive £,a~vi~ual, rld~n~ zn a cab after a smoker could become ~.II. Ns. Donley ~e schedulq~ to testify later in Ocbober. A =eprceen~atlve o£ ~he AFL-CIO aeMed a £ow administrative questions about the number of buildings estimated~o 5e covered 5y the proposed re~ul~tion, ~nd th~s was followed by few questions from Jim Dinegar of the Building Owners and Mainten~n=e A~so=iati~n. The thrust of his questions made it cl~r that BOMA's position i, that ETS ~hould be considered separate apar~ ~zom all indoor air quality subatance~ and that a simple a~t of banning smok£ng inside building~ ~ould eliminate the need this regul~tion. After a few question$ by a representative of the Servi~ Employees International Unione Judge Vitone recessed for a one-h6hr lunch break. Upon resumption at 1130 p.m, Myron Wineberg [sp?] ~~ challen~d ~he ~an~l w£~h a ~eri~a o£ qua=rich= ~out how t.hey arrived at ~hoir ri,k a,sessmont on ETS. Wine~er~ emphasized th~ OSHA had based its risk assessment solely on the Fonth=m study despite the fa=t that other studies existed. Mart~,,ik zeplled t~t 51268 2546"~

support of its rul~akln~ authority end po£~nted out possible i:~ problems with each one. Martonik ~eplied that there were hundre~.~ of ~tudies tha~ the ~taff had to consider, ~d OS~ consAdered :~::

these throe to be the moan relev&n£ to its inquiry. He insisted ~'~ that the staff would look at any new information Rupp thousht they~i .hould consider. Rupp then p=oceeae~ ~o que.tion the vaiidit> of th.t 0S~ d~ not cite a~l of ~he o~o.zn~ or inconclusive and Rupp ~1~mea that the publ~c was only ~et~.9 "one-halE of 8to~." Dr. S11verstein earnestly replied, "We ~ant to get this right -- it could be tha~ we h~ve 9often thi~ wren9 and p~=h~ps under.~ated or oversta~ed certain i.aue. -- please help u. do it ,~'~ right " Rup~ next ~.s~oned ~hethel 0S~ had ever cited "irritation" ~ the bas~, f~r a pr?po.ed rul. ~n th. workplace. ~to.~k insi.t.d that und.r cartel, c~rc~stance, percep~o.s of~ irritation can make irritation real .~nd thereby justiEy regulatlo~i At this point, a gentleman in the audience started sigr.al~ng to the .~age hy point~ng to hJg w~tch. ] later learne6~ that this wa~ Chuck Golden, head of OS~'s Office o£ the Solicito~, and he ~aa trying to signal Sue Shaman to get ~er to interrupt a few m~ent., Sharon obJeoted to ~he length of the ~ueationin~ ~d tried ~ get another ~reon ~o the p~ but the judge ~lt~ed Rupp to contXnue f~r a few more minutes. ~pp then pzoceeded ~o quesexon the agency's rmiian~e surve~ data "~he~e people clawed they ha~ been il~ ~he presence o~ at least one cigarette within the l~t two weeks and ~o use basxs for ~le~kin~. Rupp pointed ou~ ~ha~ i9%1 da~a showed rosbri~ions, includ~n~ 34 percent of which banned smoking. Ha~tonik reluctantly agreed with Rupp that it was not mezely enough ~o know the fact of exposure tO E~S but you also needed to know ~e frequency, ~he intenei~¥ and ~ho ~uracicn o£ exposure in order make good judgments. Rupp wondered ~hy OSBA believed that vanti~ati3n was adequate to deal with all uthBr toxic fumes in the workplace except ETS. Martonik insisted that i~ was hard eo contr~l an~ by ventilation and claimed tha~ OSBA co.c[uded that ve.tilation • would not be able to reduce ETS ]sve1~ based on at~ong enginee~x~ da~a. ~"~ At approxlmate~y 3:40 p.m., Pat Sirridge of Shook, Bar~ & Bacon, representing Ph~l£p Morris and several other indiv£dual~ ques¢ioned ~he p~nel brlefly. Sirridge'~ quesuio~m fucuaed cn ~e 51268 23~,8