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 TO:             ASHRAE Board of Directors

FROM:        Lee Burgett, Appeals Panel Chairman

DATE:     June 14, 1999

SUBJECT:  Appeals Panel Recommendation – 

Addendum e to ANSI/ASHRAE Standard 62-1989

On May 18,1999, an Appeals Hearing was held at ASHRAE Headquarters. Each appellant was given time to give an overview of his appeal. Time was also given for rebuttal by representatives from the SSPC. Appeals included both technical and procedural issues.

After careful consideration, the Appeals Panel determined that the procedural issues raised did not have sufficient merit to reject Addendum e. The Appeals Panel also determined that some of the technical issues would best be addressed by future addenda to Standard 62. In fact, two proposed addenda, 62g and 62o, do address some of the concerns raised by the appellants. 

It is therefore the recommendation of the Appeals Panel that the ASHRAE Board of Directors deny all appeals filed on ANSI/ASHRAE 62-1989 Addendum e. 

This recommendation is Agenda Item #15 on the Sunday BOD agenda. Please review the attached Appeals Panel Recommendations document for more specific information. If I can be of further assistance on this matter, please advise.

 cc: Appeals Panel
 
 

 APPEALS PANEL
Lee Burgett, Chairman
Kent Anderson
Merle McBride
Mike Tavares 
Ron Vallort
Tom Watson
Richard Wright

 APPELLANTS
Al Arbuthnot (absent; represented by Bruce Clark)
Hoy Bohannon 
Ed Fickes
Donald Koch
Gary Kuhl and Matt Winokur 
Mark Lehrman
Forwood Wiser

 SSPC 62
Andy Persily
Larry Schoen
Michael Hodgson
Martha Hewett, SPLS Liaison

 ASHRAE STAFF
Frank Coda
Bruce Hunn
Claire Ramspeck
Sandra Armstrong
Danny Halel

GUESTS
James Goold
Chris McDonald
Dale Walker
Kipp Coddington
 
 

  Appellant: Al Arbuthnot

Company: Neighborhood Pub Owners Association of B.C.

 TECHNICAL
 

Appeals:	Panel Recommendations:
1. Smoking is legal and enjoyed by our clientele.	1. There is no intention to use the standard to prohibit any legal activities. However, the SSPC believes that ASHRAE must provide some limits as to the applicability of the ventilation rates in the standard. Some pollutants from other activities that are legal cannot be sufficiently ventilated by the Table 2 rates.
2. Our industry will suffer economically.	2. The SSPC acknowledges that there may be an economic impact resulting from the addendum. Regardless of this, the SSPC has been directed and is obligated to ensure that the body of the standard is consistent with its purpose.
3. The health community has been working to politicize this issue in order to achieve smoking bans.	3. ASHRAE has been working to de-politicize this issue by basing its decisions on sound science and consensus of interested parties. Future addenda to 62 (62g and 62o) will take the middle ground by recognizing ETS as a significant indoor pollutant, but still give the technical design and operation tools that designers and operators need when ETS is accommodated.
4. Our association is in discussions with the Workers Compensation Board, which may set levels of contaminants.	4. The SSPC and Panel applaud your efforts to set concentration levels. When these levels are accepted by cognizant authorities, it will be possible to incorporate them into the standard.
5. We are concerned that the removal of the smoking language will leave the industry without a reliable alternative.	5. There have been many papers published on ventilating smoking areas. Tobacco companies have published guidance booklets. Addenda 62g and 62o to 62-89 will address some of these ETS issues.
6. The hospitality industry was not a voting representative in your deliberations.	6. ANSI procedures do not require that every interest be a member of the SSPC, but that every party have an opportunity to participate and have their opinions heard. There are several members on the SSPC that work for, operate, represent, or design spaces for the hospitality industry.
7. We trust that ASHRAE is a scientific association free from political pressures and will not cause smoking bans.	7. We believe that your trust is well founded and that the SSPC's work will represent the reasonable and scientifically correct middle ground which the political process and policy makers may use to craft any number of acceptable guidelines for addressing ETS in buildings.
8. Why single out ETS when food preparation creates other contaminants?	8. We are not aware of cognizant authorities making such unanimous statements about food preparation contaminants as they have about ETS.
9. We are disappointed that ASHRAE has chosen to abandon this sector of the business community.	9. Future addenda to ASHRAE 62 will give greater guidance than has been published before in the standard on the treatment of smoking areas in buildings.

PROCEDURAL
 

None

N/A

Appellant: Hoy Bohanon

Company: R. J. Reynolds Tobacco Company

 TECHNICAL
 

Appeals:

Panel Recommendations:

1. Addendum 62e removes valuable guidance. It is unclear whether tobacco is covered or not in ventilation rates.

1. Addendum 62e removes the special allowance made for "a moderate amount of smoking." Specific language clarifying that the Table 2 rates apply to no smoking areas was considered but not incorporated in order to achieve a greater degree of consensus from tobacco interests. There have been many papers published on ventilating smoking areas. Tobacco companies have published guidance booklets addressing this issue.

PROCEDURAL
 

1.a. SSPC-62, now SSPC62.1 was never disbanded after Dr. Tucker’s tenure as chair ended.	1.a. SSPC 62 (now SSPC 62.1) is a Standing Standard Project Committee. These are not disbanded at any time.
1.b. The committee has continued to pursue the agenda originally formulated by EPA.	1.b. The Panel believes that any convergence of the SSPC's and EPA's work on ETS is not evidence of EPA influence.
1.c. Many of the key members of the current committee were originally appointed by Dr. Tucker.	1.c. Of the current 19 PCVM's six were recommended to SPLS by Dr Tucker. The other thirteen were recommended by the current Chair Steve Taylor.
1.d. Richard Daynard is a professed anti-tobacco advocate with no expertise in ventilation and engineering principles.	1.d. Mr. Daynard was made a voting member of this committee due to his expertise in public health. There are four members of the committee that are not ventilation engineers, but who bring valuable expertise in other areas.
1.e. SSPC-62's own explanation of its justification for Addendum 62e demonstrates EPA's continued undue influence and is fundamentally flawed because the EPA’s report has been vacated by a federal district court.	1.e. As described in the foreword to the addendum, EPA was only one of several cognizant authorities upon which the addendum was based.
2.a. Tucker was an "organizational member" not an individual member. EPA had undue influence on the SSPC. (Reference PASA 4.2.2.)	2.a. While Tucker is an employee of the EPA, the Panel found that Tucker acted as an individual, as did other members of the SSPC. No evidence is presented that EPA's opinions were any more represented than those of others. Tucker’s affiliation has nothing to do with 62e; it was approved for Public Review 2 ½ years after his chairmanship ended and approved for publication 3 ½ years after his term ended.
2.b. Tucker appointed an unbalanced committee, particularly lack of building owners. Also, Daynard was biased against tobacco. (Reference PASA 4.2.2.)	2.b. The SSPC is balanced in accordance with ASHRAE and ANSI procedures.
2.c. Procedures followed denied due process protections to interested parties. (Reference PASA 5, 6.1, 6.5a)	2.c. ASHRAE procedures are ANSI approved and all were followed with respect to this addendum. Procedures do not require that every interest be represented on the committee, but that every party have an opportunity to participate and have their opinions heard.
2.d. The standard is not a consensus document. EPA had undo influence.	2.d. While all the applicable rules are listed in the appeal, there do not appear to be any claims that they were violated. The argument of undo influence offers no supporting evidence.
2.e. EPA 1992 report was major basis for 62e but the report was vacated by Judge Osteen.	2.e. Although Judge Osteen has vacated several chapters of the EPA report that deal with the carcinogenicity of ETS in adults, he has left standing all the material concerning the risks for children. In addition, EPA's report did not even address many other health risks, for instance, that of heart disease. With all do respect to Judge Osteen's legal expertise, this Panel nor the SSPC regards him as a scientific, health or engineering expert more qualified than the scientists and engineers at EPA and those outside EPA which their report references. Also, Judge Osteen's ruling is under appeal and until the appeal process is concluded, no conclusions can be drawn from his rulings.

 
 

 Appellant: Ed Fickes

Company: Fickes Engineering

 TECHNICAL
 

Appeals:	Panel Recommendations:
1.a. The current ventilation rates are widely judged to provide good IAQ. (Reference Janssen 1991 testimony to U.S. House Energy and Commerce Subcommittee)	1.a. Janssen's testimony related to the comfort acceptability of the ventilation rates. Acceptable air quality is also defined as "air in which there are no known contaminants at harmful concentrations as determined by cognizant authorities." Since 1989, evidence has increased regarding the health effects of ETS exposure and cognizant health authorities are unanimous on this issue.
1.b. The 1989 version is already incorporated into innumerable building codes.	1.b. Scientific knowledge is not static, nor are standards and building codes which reflect this knowledge. Current understanding of the issue warrants a change in the standard.
1.c. EPA's risk assessment is the primary technical justification and it has been struck down.	1.c. Although Judge Osteen has vacated several chapters of the EPA report that deal with the carcinogenicity of ETS in adults, he has left standing all the material concerning the risks for children. In addition, EPA's report did not even address many other health risks, for instance, that of heart disease. With all do respect to Judge Osteen's legal expertise, this Panel nor the SSPC regards him as a scientific, health or engineering expert more qualified than the scientists and engineers at EPA and those outside EPA which their report references. Also, Judge Osteen's ruling is under appeal and until the appeal process is concluded, no conclusions can be drawn from his rulings.
1.d. The SSPC has ignored other information, such as Mark Lehrman's ventilation model.	1.d. The committee has pointed out to Mr. Lehrman the flaws in his work, most notably his use of the cigarette equivalency method. Mr. Lehrman is not accepted by the SSPC as a cognizant authority able to determine acceptable exposure levels of ETS.
1.e. The 62-89 committee developed footnote 2 with full knowledge of the ETS issues.	1.e. The state of knowledge has changed. In addition, the statements of cognizant health authorities have become more definitive and are unanimous with respect to the health impacts of ETS. The SSPC is acting on the basis of current best knowledge.
2.a. Addendum 62e negatively affects users in that it leaves manufacturers and users with no guidance about approved ventilation levels.	2.a. There have been many papers published on ventilating smoking areas. Tobacco companies themselves have published guide books.
2.b. Addendum 62e serves as a public policy statement which limits the freedom of building owners to operate their buildings as they see fit.	2.b. ASHRAE has been working to de-politicize this issue by basing its decisions on sound science and consensus of interested parties. Future addenda to 62 will take the middle ground by recognizing ETS as a significant indoor pollutant, but still give the technical design and operation tools that designers and operators need when ETS is accommodated.

PROCEDURAL
 

1.a. SSPC 62.1 did not approve Addendum 62e for public review in accordance with MPAS and PASA requirements. Specifically, MPAS Annex P deadlines were not met.	1.a. The appellant implies that Annex P deadlines were not met due to confusion in the conversion from periodic to continuous maintenance. Annex P dates that fell in the Fall of 1997 were not followed specifically because the BOD put all SSPC 62.1 action on hold from June 1997 until December 1, 1997, which made it impossible to adhere to these dates. All applicable voting requirements were satisfied. In addition, Annex P is part of MPAS. MOP and MPAS violations are not appealable to the BOD.
1.b. SSPC Standard Action Votes for 62e were improper. Specifically, the committee took standards action votes at the June 1998 Toronto meeting, Motions #6, 7, 7A, 8, 9, 11 and 12, that failed to obtain ten votes and, had SSPC 62.1 followed the rules, Addendum 62e should have incorporated 18 public review comments, rather than none.	1.b. All of the motions mentioned dealt with responses to commenters. These are not "standards actions" which are specifically defined by PASA as "recommending or approving publication of a new, revised or reaffirmed standard or withdrawal of a standard.
2. Addendum 62e was approved before implementing MDSI recommendations, such as organizational memberships, that were mandated by the BOD.	2. The BOD did not mandate that all work on Standard 62 be stopped while Standards Committee implemented the MDSI recommendations. The Standards Committee, its subcommittees, and higher bodies within ASHRAE have worked diligently to develop rules implementing the recommendations of the MDSI report since it was received by the BOD. At this time, ASHRAE has approved organizational memberships but ANSI has yet to give ASHRAE formal approval on it, so it would have been a violation to include Organizational Members prior to being approved by ANSI.

 
 

 Appellant: Donald Koch

Company: JBA Consulting Engineers

 TECHNICAL
 

Appeals:	Panel Recommendations:
1. Increases liability of professionals who design HVAC systems for smoking occupancies by neglecting to establish acceptable concentrations of ETS.	1. ASHRAE is not qualified to establish the acceptable concentration levels the appellant desires. Once a cognizant health authority establishes such levels, then the SSPC will be able to provide guidance to designers on how to achieve them. No cognizant authority, nor the tobacco industry or any other industry has proposed such levels.
2. The standard as revised provides no guidance for designing rooms where smoking is allowed.	2. The standard currently provides incorrect information for designing smoking areas in that it states that ventilation rates are adequate to accommodate smoking and achieve "air in which there are no known contaminants at harmful concentrations as determined by cognizant authorities."
3. If Addendum 62e is adopted, then it follows that smoking one cigarette in a building as vast as the Atlanta Stadium will cause unacceptable air. ASHRAE must set levels for ETS analogous to those it sets in Table 1 for SO2, CO, NO2 and lead.	3. The SSPC is sympathetic with the appellant’s point that some level of dilution of ETS probably yields acceptable risk. Note, however, that the SSPC did not set the levels of SO2, CO, NO2 and lead as the appellant asserts. These levels were set by a cognizant authority, namely, the US EPA. When a cognizant authority sets acceptable concentration levels of ETS, the SSPC can incorporate those levels into the standard.

PROCEDURAL
 

None

N/A

 
 

 Appellant: Gary Kuhl / Matt Winnokur

Company: Philip Morris Management Corp.

 TECHNICAL
 

Appeals:	Panel Recommendations:
1. Valuable guidance has been removed using a piecemeal approach. Provide a clear path of compliance to implement any smoking policy chosen by a client. Combine Addendum 62e with other addenda (such as 62g).	1. The standard currently provides incorrect information for designing smoking areas in that it states that rates are adequate to accommodate smoking and achieve "air in which there are no known contaminants at harmful concentrations as determined by cognizant authorities." Regarding guidance for areas where smoking is allowed, there have been many papers published on this issue. Tobacco companies themselves have published guidance booklets. The SSPC also plans to address this issue with future addenda.
2. The removal of the valuable design guidance is not justified. The committee has not addressed the field studies and surveys submitted previously which show that the 62-89 ventilation rates achieve acceptable indoor air quality. The SSPC should focus on the work done to develop 62-89.	2. The SSPC believes it has sufficiently reviewed the field studies and surveys submitted. The Panel believes that the appellants have not provided any specific "field studies and surveys" that refute the statements made by the cognizant authorities or the epidemiological and health literature on which the authorities rely.
3. The rationale regarding ETS is inconsistent and unwarranted. There must be a safe level of ETS. If the PC can't identify that level, then it should not eliminate ETS.	3. The PC is sympathetic with the appellants' point that some level of dilution of ETS probably yields acceptable risk. However, the committee is not in a position to establish such concentration or exposure limits and instead rely on cognizant authorities to do so. When a cognizant authority sets acceptable concentration levels of ETS, the PC can incorporate those levels into the standard.
4. The elimination of the reference to smoke removal equipment is inconsistent and unwarranted. Smoke removal equipment may be useful in conference rooms. Not all of the references to smoke removal equipment are removed in Addendum 62e	4. While smoke removal equipment may be useful for comfort purposes in conference rooms where smoking may occur, its effectiveness for health effects has not been adequately demonstrated. Since the body of the standard is intended to promote acceptable indoor air (air that meets both the comfort and health goals), its appearance there might create an incorrect impression. The standard is on continuous maintenance and the additional references to smoke removal equipment will be proposed to be removed in forthcoming addenda. The future possibility for such improvement does not negate the accuracy of 62e.

PROCEDURAL
 

1. The SSPC did not comply with ASHRAE's Continuous Maintenance Procedures (MPAS Annex P).	1. Annex P dates that fell in the Fall of 1997 were not followed specifically because the BOD put all SSPC 62.1 action on hold from the June 1997 until December 1, 1997. The appellants argue that not meeting internal SSPC time lines resulted in a failure to provide due process. Due process has occurred with respect to this appellant and others.
2.a. The SSPC was not given a chance to consider and approve the rationale and changes were made after SSPC vote and before SPLS vote.	2.a. The only changes made to the addendum were to the foreword. MPAS defines a foreword as "introductory remarks, not part of the standard." There is no requirement that the foreword be approved by the PC.
2.b. Reasons for Ed Fickes' "no" vote and abstentions were not provided to SPLS, as required by MPAS 6.2.4.	2.b. PASA does not require written explanations of negative votes. The purpose of the MPAS requirement is to provide SPLS with information on the issue for their use in evaluating whether as addendum should be published for public review.
2.c. Standards staff did not review the addendum prior to SPLS vote.	2.c. MPAS 6.2.2 and 6.3.4 state that the draft is "normally reviewed" by staff prior to SPLS vote; it is not required. On the other hand, MPAS section 6.5 says that the drafts "shall" be reviewed by staff after SPLS approval for publication, which did in fact occur. No changes were made by staff in the review.
3. The committee was dominated by Gene Tucker and the EPA as evidenced by:
3.a. The SSPC’s continued support of EPA's position on ETS.	3.a. The convergence of the SSPC's and EPA's work on ETS is not evidence of undue EPA influence.
3.b. The continued presence of Dr. Tucker	3.b. Mr. Tucker is a subcommittee voting member, not a project committee voting member. He is considered an expert on indoor environmental issues and has provided valuable input on sources of contaminants from building materials and furnishings, testing of emissions, and calculation of ventilation rates using the IAQ procedure.
3.c. The continued presence of SSPC members originally appointed by Dr. Tucker.	3.c. Members of the SSPC are not appointed by the chairman. Of the current 19 PCVM's six were recommended to SPLS by Dr Tucker. The other thirteen were recommended by the current Chairman, Steve Taylor.
4. There were procedural improprieties when draft standard 62R was developed, as documented in Philip Morris' comments dated December 6, 1996. This non-compliance continues.	4. Procedural issues relating to 62R are irrelevant; that draft was withdrawn.
5. SSPC 62.1 lacks balance. It is over-represented by indoor air quality and environmental health consultants, academics and those with ties to government, and under-represented by "user" category members.	5. ASHRAE and ANSI rules allow the committee to establish membership categories that differ from the standard user/producer/general categories. Existing categories with member numbers are as follows: CATEGORY PCVM PSVM Manufacturer - HVAC & IAQ 3 4 Manufacturer - Sources 2 0  Health Professionals 1 1 General 4 6 Designers/Builders 5 3  Owners/Oper's/Occupants 4 2 PCVM = Project Committee Voting Member PSVM = Project Subcommittee Voting Member, i.e., cannot vote on committee motions The SSPC is balanced based on ANSI and ASHRAE rules.
6. ASHRAE rules not available, cause undue financial burden, and the rules are inconsistent.	6. The complete set of ASHRAE Standards procedural documents is over 450 pages. The $300 fee assessed by ASHRAE is reasonable for reproducing and shipping these documents. The appellants present no evidence that the $300 fee has imposed an undue financial burden on any party. All members of the SSPC receive copies of the MPAS when they are appointed. In addition, the most recent revision of the MPAS, MOP, and PASA were available at all meetings of the SSPC.

 
 

 Appellant: Mark Lehrman

Company: Wells Gardner Electronics

TECHNICAL
 

Appeals:	Panel Recommendations:
1. The delivered dose at 20 cfm and 3% filtration efficiency is about 0.02 cigarettes per day.	1. The panel agrees with the SSPC in that no cognizant authority has accepted the cigarette equivalency method of risk assessment, and several have specifically rejected it.
2. The exposure level described above will produce one lung cancer per year for people over 35 for about every 4,000,000 exposed.	2. The appellant's risk assessment has not been peer reviewed and has not been accepted by any cognizant authority.
3. Dose-response relationships are necessary for any determination of adverse health effect.	3. ASHRAE has not and should not determine any adverse health effect.
4. ETS is not a carcinogen. EPA's determination has been vacated by the courts.	4. Although Judge Osteen has vacated several chapters of the EPA report that deal with the carcinogenicity of ETS in adults, he has left standing all the material concerning the risks for children. In addition, EPA's report did not even address many other health risks, for instance, that of heart disease. With all do respect to Judge Osteen's legal expertise, the Panel nor the committee regards him as a scientific, health or engineering expert more qualified than the scientists and engineers at EPA and those outside EPA which their report references. Also, Judge Osteen's ruling is under appeal and until the appeal process is concluded, no conclusions can be drawn from his rulings.
5. OSHA is not credible because they rounded their numbers, applied the risk estimate to people not subject to lung cancer, applied it to people not exposed to ETS, and the study on which they relied is flawed.	5. These issues should be referred to OSHA and the study author. The SSPC's list of cognizant authorities includes nine more in addition to OSHA and EPA.

PROCEDURAL
 

1. ASHRAE has not provided any technical rationale for rejecting my comment.

1. The SSPC did provide a technical response which was that ASHRAE does not have the expertise to address Mr. Lehrman's risk analysis, and, is instead relying on cognizant authorities to provide guidance on the issue of health risks related to ETS.

 
 

 Appellant: Forwood Wiser

Company: Environmental Dynamics Group

 TECHNICAL
 

Appeals:	Panel Recommendations:
1. There are too many unanswered questions about ETS levels and exposures to make the change.	1. This much is known with a high degree of certainty: epidemiological studies have shown significantly increased risk of death from lung cancer, heart disease and other health effects at the levels at which ETS is commonly found indoors.
2. Since ETS is composed of particulate and gaseous matter, ETS concentrations can be controlled with air cleaners. Addendum 62e seems to be saying that there is no means to accommodate or remediate smoking at any level.	2. Before air cleaning can be applied in a definitive manner, target concentrations of all ETS constituents that affect health or cause odor or irritation must be identified and the removal efficiency of the air cleaning device with respect to each of these constituents must be established by a repeatable rating procedure. The state-of-the-art is not yet at this level. In particular, no cognizant health authorities have established ETS concentrations that result in a reasonable health risk. Until these technical issues are addressed, the standard cannot provide definitive procedures for using air cleaners to control ETS.
3. The piecemeal approach to ETS related addenda is confusing. Provide an outline of where the standard is going.	3. While some reviewers may find the piecemeal approach confusing, others found the global revision known as 62R controversial or troubling in other ways. The SSPC has since been directed to modify the standard using addenda.
4. Adopting 62e without alternative protocols will cause an economic impact on designers, operators, and equipment manufacturers.	4. The SSPC acknowledges that there may be an economic impact resulting from this addendum. Regardless of this, the SSPC is obligated to ensure that the body of the standard is consistent with its purpose. Simply put, the committee feels, based on the positions of almost all cognizant health authorities, that the Table 2 rates cannot accommodate "a moderate amount of smoking" and meet the goal of the standard.
5. Smoking is legal, expected, and normal and must be accounted for in the design and operation of buildings.	5. There is no intention to use the standard to prohibit any legal activities. However, we must provide some limits as to the applicability of the ventilation rates in the standard. Pollutants from other activities that are legal also cannot be sufficiently ventilated by the Table 2 rates.
6. Genuine debate is precluded because a member of the PC said to me that there are two kinds of people on the issue, those who take money from the tobacco companies, and those who do not.	6. SSPC member Larry Schoen made a statement to you when he contacted you by telephone in an attempt to better understand and perhaps resolve your comments on the public review draft of addendum 62g. Mr. Schoen made this statement in the context of the Barnes and Bero review, "Why Review Articles on the Health Effects of Passive Smoking Reach Different Conclusions" JAMA May 20,1998. This article shows that the conclusions of authors do indeed divide very starkly along the line of whether they receive support from tobacco companies. It concludes that "The conclusions of review articles are strongly associated with the affiliations of their authors…readers of review articles should consider authors' affiliations when deciding how to judge an article's conclusions."

 

PROCEDURAL
 

None

N/A