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TRANSCRIPT OF PROCEEDINGS IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ACTION ON SMOKING AND HEALTH, Petitioner, --vs-- U.S. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al., Resspondents. No. 89-1656 Pages 1 thru 20 Washington, D.C. May 6, 1991 MILLER REPORTING COMPANY, INC. 507 C Street. N.E. Washington, D.C. 20002 546-6666

1 T504 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ACTION ON SMOKING AND HEALTH, Petitioner, . V. U.S. DEPARTMENT OF LABOR, . OCCUPATIONAL SAFETY AND HEALTH . ADMINISTRATION, et al., . No. 89-1656 Respondents. . Monday, May 6, 1991 Washington, D.C. The above-entitled matter came on for oral argument, pursuant to notice, at 9:30 a.m. BEFORE: j CIRCUIT JUDGES RUTH B. GINSBURG, SILBERMAN and j ~ D.H. GINSBURG ~ APPEARANCES: ~ ~ ATHENA R. TAYLOR-CARROLL de MUELLER, ESQ., ~ 2013 H Street, N.W., Washington, D.C. 20006; on behalf of Petitioner CHARLES F. JAMES, ESQ., Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210; on behalf of the Respondents MRLER REPORTING CO., INC. 507 C Street. N.E. Washington. D.C. 20002 (202) 546-6666

2 Jt i C O N T E N T S ORAL ARGUMENT OF: PAGE Athena R. Taylor-Carroll de Mueller, Esq., on behalf of Petitioner 3j I Charles F. James, Esq., on behalf of Respondents 11 1 ~ ~ Athena R. Taylor-Carroll de Mueller, Esq., on behalf of Petitioner -- Rebuttal 19 I MILLER REPORTING CO.. INC. 507 C Street. N.E. Washington. D.C. 20002 (202) 546•6666

jt 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MILLER REPORTINQ CO., INC. 507 C Scceet. N.E. Wuhiagcon. D.C. 20002 (202) 546-6666 3 P R 0 C E E D I N G S THE CLERK: No. 89-1656, Action on Smoking and ~ Health, Petitioner v. The Occupational Safety and Health ~ Administration, Department of Labor, Secretary of Labor, and I the Honorable Alan C. McMillan, Acting Assistant Secretary ofi I Labor for Occupational Safety and Health. ~ Athena R. Taylor-Carroll de Mueller, Esq., for ~ I petitioner; and Charles F. James, Esq., for respondents. i THE COURT: Ms. Mueller, please proceed. I ORAL ARGUMENT OF ATHENA R. TAYLOR-CARROLL de MUELLER, ESQ., I i ON BEHALF OF PETITIONER MS. MUELLER: May it please the Court: My name is ; ~ Athena Mueller. I am representing Action on Smoking and i ~ Health, and today I am deputizing for John Banzhaf, who has I often appearing before this Court before on mattes relating to smoking and health. This is a petition for review of a determination of the Occupational Safety and Health Administration, in response to a ASH citizen petition asking for an emergency temporary standard to regulate tobacco smoke in the workplace. Alternatively, we would like to have had any other remedy which would alleviated this rather serious condition. i

jt 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MIILER-REPONTiNO CO., INC. 507 C Srreer, N.E. Washingron. D.C. 20002 (202) 546•6666 4 The petition was also filed initialled on the 6th of, i May by the Public Citizens Research Group and also by the Medical Public Health Association, also requesting an emergency temporary standard, and there the agency also refused their petition, but they are not proceeding in this matter. ~ ~ Basically, the core of ASH's case is that the ~ agency has not proceeded on the basis of substantial evidencei in the record considered as a whole. Your Honors, I am not I proposing to reiterate arguments in the briefs, but there arei three points I would particularly like to bring your attentioni . i to. ~ Basically, the ASH case rests on the OSHA statute, section 655(c), regulating with regard to an emergency temporary standard, and there are three elements there: i First, the agency must determine that there is a i toxic substance present in the workplace; secondly, it must be considered whether this is, in fact, a danger to employees; and, thirdly, it must be decided whether a standard is going to be necessary to remedy this position. With your permission, I-would like to consider these points, briefly:

jt 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 M0.lER REPORTING CO.. INC. 507 C Screec. N.E. Washingcon, D.C. 20002 (202) 546•6666 5 First, the question of toxic substance, the record 2~ is replete with examples of research which has considered 3~ --his question, and which has found this very complex subject to contain many, many different types of toxins. There are ~ i 3,000 compounds in tobacco smoke alone, and some of these, ~ ~ such as benzine, carbon monoxide, ethylene oxide, are all ; I toxic in their own right, but when you have them mixed j together, they become an extremely deadly cocktail, if one can say that, which people in the workplace are having to i imbibe constantly. j When they were asked whether this_is a question forj regulation by any government agency -- and I have to perhaps remind Your Honors that there are two recent cases in which I general public knowledge, the Perrier case and the Chilean grape case, in which the Federal Food and Drug Administrationi decided to compound cargoes of grapes and prevent the sale of ~ I h l d h i very muc ess very, conta ne Perrier, when they eac carcinogenic material than is present -- QUESTION: Ms. Mueller, on that point, we are attempting to determine whether it was the will of Congress in a situation like this, an emergency temporary standard be put in place, to put this on the fastest track of anything f.~ . ~

jt 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MILLER REPORTING CO.. INC. 507 C Srreer. N.E. Wuhingcon. D.C. 20002 (202) 546•6666 6 before OSHA, and in that regard, isn't it appropriate to takei into account the Federal policy acquiesced by Congress every i year to continue to support the production of tobacco? i MS. MUELLER: That is true, Your Honor, but on political questions, of course, which one has to consider of Congress, the people who are espousing this naturally have to consider the will of their constituents, so I think this is a 1°ery much a political question, rather than a health question.i QUESTION: But if we are supposed to be attempting to divine the will of Congress, we have no mandate to right all wrongs, and if Congress has not elected to provide the remedy, then is it'appropriate for us to step in? We have two statutes, the one under which you are proceeding, and then there is this other action going on, and my question to you is, is it appropriate for us to take into account that every year there is an affirmative vote in Congress to continue the support of the production of tobacco? MS. MUELLER: That is so, Your Honor, but I would respectfully suggest the votes of Congress are very often based on information which is far older than that which comes before the Court and that which certainly comes before the scientific advisors of the Federal agencies who are specific-

jt 31 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 7 111 ally charged with safeguarding public health. iI 211 QUESTION: Proceed with your argument. MS. MULLER: Thank you. ~ The second point is whether any employees are I I exposed to tobacco smoke and are suffering in grave danger inl i the workplace. Here the record provides a variety of figures,i but I would submit that these are generally ranges. The Repace range is that 5,000 people per year die as a result of exposure to environmental tobacco smoke. I think one of the other public health associations puts it at 3,000. The Office of Technology Assessment of the U.S. Congress puts it at between 9,000 and 11,000. Now, I may stress that this is just deaths from lung cancer. In addition to that, other evidence which has been put in the record, one paper which has been annexed to Ash's petition, the Judson Wells petition, puts an overall figure of 57,000 people dying per year, 32,000 of these of heart disease. Now, if we look in perspective of other regulatory processes, for example, the EPA, 72 people per year die, according to the Repace evidence in the record, from other environmental causes, that is exposure to contaminants in the M/LLER REPORTING CO.. INC. 507 C Street. N.E. Washingcon. D.C. 20002 (202) 546-6666

jt 31 1 41 ~ 5i 6, 71 I 8 10 11 12 13 14 15 16 17 18 19 20 2.1 22 MILLER REPORTINO CO., INC. 507 C Screet. N.E. Washington. D.C. 20002 (202) 546-6666 8 outside air space. So, I think when we see the contrast between this and the amount of exposure in the indoor air• i i space, we have to think very carefully. Even in respondents'I own study that has been sponsored by them, the Meridian I study, they say that the evidence of breathed in is such thatj we cannot easily disregard it. ~ The third point which I would like to make is in relation to whether a standard can remedy a situation, and Ash, of course, very strongly recommends that it can. We are, Your Honors, I would like to submit here, in a case of first impression. All the other.cases which have come before you, the cases regarding ethyl alcohol, the cases regarding i . I benzine, all involved very important industries, arid the chemical in every case was part of that industrial process. So, the agency had not only to consider the actual poison element, but also the question of the economic aspects of the industry and the general economy of the United States, the jobs of thousands of people. Here we are dealing with a substance that has absolutely no industrial purpose. In fact, it interferes with productivity, it causes illness, it fouls the workplace, aD it raises insurance raises. So, if, in fact, the agency N O OD r ~ rJ r

t J 21 41 I 51 6 71 1 81 i 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MILLER REPORTING CO., INC. 507 C Sveer. N.E. Wuhingcon. D.C. :0002 (202) 546-6666 1I',I decides to issue an emergency temporary standard in this 9 case, it will not be damaging the industry or the economic situation, in any case. It will, in fact, be assisting it considerably. Finally, I would like to say, in concluding, that the original petition was filed in 1987, and it is now 4 years later. We are still having people who are dying as a result of exposure. I will not mention, at least I will not rely, because the respondents did not have it before them at the time they made the decision, the recent studies by the Environmental Protection Agency, but if the Court wishes, I would be very happy to submit a supplementary memorandum on the latest findings by the Science Advisory Committee of the EPA. QUESTION: It is the case that this Court has never required an agency to issue any G, is that -- MS. MUELLER: That is so, yes. And Ash, Your Honor, would be very content for Your Honors to consider the matter and make such recommendations as you consider appro- priate in the circumstance, if necessary, properly leading to a regular notice and comment rulemaking, we would be very OD ~ happy with that situation. O aD ~ T C.7