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4 U.S. DEPARTMENT OF LABOR OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION PUBLIC PETITION FILED PURSUANT ) TO 29 U.S.C. 651 ET SEQ. AND ) 29 C.F.R. §1911.12 FOR AN ) DOCKET NO. EMERGENCY TEMPORARY STANDARD ) REGULATING ENVIRONMENTAL ) TOBACCO SMOKE ) PUBLIC PETITION BY ACTION ON SMOKING AND HEALTH (ASH) FOR AN EMERGENCY TEMPORARY STANDARD (ETS) REGULATING ENVIRONMENTAL TOBACCO SMOKE IN THE WORKPLACE ABSTRACT: Although OSHA's determination - that the evidence at the time of ASH's 1987 Petition did not warrant the issuance of an emergency temporary standard relating to Environmental Tobacco Smoke (ETS) in the workplace - was upheld by the U.S. Court of Appeals, ASH respectfully seeks such an emergency temporary standard again, based upon the following changes in circumstances since 1987: A. The Environmental Protection Agency (EPA), after an extensive outsider-reviewed study, determined the ETS is a Group A carcinogen in the same category as asbestos and benzene, and that it kills at least 3000 Americans each year from lung cancer alone; B. The National Institute for Occupational Safety and Health (NIOSH) has likewise issued a report concluding the ETS causes lung cancer deaths in nonsmokers, and that smoking in workplaces must either be banned or restricted to separately-ventilated areas; C. The outgoing U.S. Surgeon General has reported that ETS causes approximately 53,000 deaths among nonsmoking Americans each year from lung cancer, cancer at other cites, and heart attacks; D. More than 200 new studies and articles on the topic have been published in major scientific and medical journals; 1. these include approximately 24 studies of exposure to ETS at environmental or normal levels not available in 1987, and the type of evidence which has not been available for determining whether or not to classify other substances as Group A carcinogens 2. several major studies linking ETS to heart attacks and to cancer at other sites in addition to the lungs E. The outgoing Secretary of Labor issued a directive that ETS was so dangerous that OSHA should begin a separate rulemaking proceeding limited to ETS as quickly as possible F. After several years of dismissing ASH's law suits arguing that OSHA was unreasonably delaying in dealing with ETS in the workplace, the U.S. Court of Appeals has denied OSHA's motion to dismiss ASH's current suit, and ordered the agency to report to it. RESPECTFULLY SUBMITTED: ACTION ON SMOKING AND HEALTH (ASH) July 12, 1993 2013 H STREET N.W. WASHINGTON, D.C. 20006 (202) 659-4310

11 TABLE OF CONTENTS I. EXPOSURE TO ENVIRONMENTAL TOBACCO SMOKE PRESENTS A GRAVE DANGER TO EMPLOYEES . . . . . . . . . . . . . . . • . • 1 A. EPA Report Amplifies Grave Danger . . . . . . . . . 1 B. Evidence of Grave Danger Has Grown Substant__~_11y . 2 C. Cancer Evidence Has Accumulated . . . . . . . . . . 5 1. EPA report . . . . . . . . . . . . . . . . . . 5 2. National Institute for Occupational Safety and Hea lth . . . . . . . . . . . . . . . . . . . . 7 3. National Cancer Institute . . . . . . . . . . . 8 4. Pertinent New Lung Cancer Studies ....... 8 5. Cervical And Other Cancer Risks ........ 9 D. Evidence Of The Grave Danger Of ETS To The Heart Has Also Grown . . . . . . . . . . . . . . . . . . 10 E. ETS Is Now The Third Maior Cause Of Death In The U.S. . . . . . . . . . . . . . . . . . . . . . . . 14 II. AN EMERGENCY TEMPORARY STANDARD IS NECESSARY TO PROTECT EMPLOYEES . . . . . . . . . . . . . . . . . . . . . . . 15 III. ENVIRONMENTAL TOBACCO SMOKE QUALIFIES FOR EMERGENCY REGULATI ON . . . . . . . . . . . . . . . . . . . . 16 IV. PROPOSED RULE BANS SMOKING . . . . . . . . . . . . . . . 16 V. A TOTAL SMOKING BAN IS REQUIRED . . . . . . . . . . . . 17 A. The OSH Act and Judicial Precedent Compel A Total Prohibition . . . . . . . . . . . . . . . . . . . . 17 B. Increased Ventilation Is Not Adequate ....... 18 C. Eliminating Tobacco Smoke From the Workplace Is Technologically And Economically Feasible ..... 20 VI. INTENDED EFFECT IS TO SAVE LIVES AND MONEY . 21 A. Life And Health Effects . . . . . . . . . . . . . . 21 1. Seventy-five million workers are at risk ... 21

iii 2. ETS is the number one workplace carcinogen . . 22 3. Saving lives is the most significant effect . 22 B. Economic Effects . . . . . . . . . . . . . . . . . . 23 1. Substantial net savings . . . . . . . . . . . 23 2. Health care cost containment . . . . . . . . . 24 3. Fire prevention economic savings ....... 26 4. Lecral financial benefits . . . . . . . . . . . 26 5. Janitorial costs reduced . . . . . . . . . . . 27 VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 28 ATTACHMENTS APPENDIX

iv TIME LINE SHOWING DELAY BY OSHA IN ACTING ON ENVIRONMENTAL TOBACCO SMOKE (ETS) DESPITE URGENT NEED FOR ACTION Jul-Aug 1986 Sep-Oct 1986 Nov-Dec 1986 Jan-Feb 1987 Mar-Apl 1987 May-Jun 1987 Jul-Aug 1987 Sep-Oct 1987 Nov-Dec 1987 Jan-Feb 1988 Mar-Apl 1988 May-Jun 1988 Jul-Aug 1988 Sep-Oct 1988 Nov-Dec 1988 Jan-Feb 1989 Mar-Apl 1989 May-Jun 1989 Committee on Airline Cabin Air Quality of National Research Council recognizes health risks of ETS and recommends removal from aircraft environment Committee on Passive Smoking of National Research Council recognizes role of ETS in lung cancer, other cancers and cardiovascular disease U.S. Surgeon General's report "The Health Consequences of Involuntary Smoking" comes to the conclusion that ETS is a cause of disease, including lung cancer, in healthy nonsmokers and that the simple separation of smokers and nonsmokers within the same airspace does not eliminate exposure to ETS The U.S. General Services Administration (GSA) issues new regulations designed to provide a "reasonably smoke-free environment" for all federal workers ASH files Citizen Petition asking for an emergency temporary standard banning ETS in the workplace Smoking banned on flights of 2 hours or less ASH files court action against OSHA to obtain a response to ASH's Petition EPA advisory recommends control of workplace smoking for health reasons including cancer risks Jul-Aug 1989

V Sep-Oct 1989 Nov-Dec 1989 Jan-Feb 1990 Mar-Apl 1990 May-Jun 1990 Jul-Aug 1990 Sep-Oct 1990 Nov-Dec 1990 Jan-Feb 1991 Mar-Apl 1991 May-Jun 1991 Jul-Aug 1991 Sep-Oct 1991 Nov-Dec 1991 Jan-Feb 1992 OSHA declines to issue an emergency temporary standard banning ETS in workplace ASH files Petition for Review in U.S. Court of Appeals Ban on smoking on most domestic flights takes effect OSHA promises to decide by November 30 whether to ban or restrict workplace smoking OSHA determines not to initiate non-emergency rulemaking on ETS Interstate Commerce Commission (ICC), acting on ASH petition, bans smoking on interstate buses ASH files law suits for review of OSHA's refusals to regulate ETS NIOSH reports ETS causes cancer and other health hazards for nonsmokers and recommends isolating smokers in the workplace OSHA publishes a Request for Information (RFI) on all indoor air pollutants U.S. Court of Appeals for D.C. Circuit refuses OSHA's request to dismiss ASH's two law suits and issues order requiring OSHA to justify "allegations of unreasonable delay by the agency" in taking action to ban or limit workplace smoking Court holds OSHA's refusals were not "final refusals" and denies ASH's suits but states that ASH may request review if "OSHA unreasonably delays resolution of the matter following receipt of comments" m ASH files Comments in Response to OSHA's Request Q~j for Information O ASH files new Petition with OSHA for regulation of W workplace smoking in view of the NIOSH and other -11

vi medical and scientific studies on the health hazards of ETS Mar-Apr 1992 ASH files new petition with OSHA for regulation of ETS as potential workplace carcinogen May-Jun 1992 Jul-Aug 1992 ASH files further updated petition with OSHA for regulation of ETS as potential workplace carcinogen Sep-Oct 1992 OSHA denies ASH's petition for regulation of ETS as a potential occupational carcinogen Nov-Dec 1992 ASH sues OSHA for refusing to consider ETS in a separate proceeding, and for OSHA's October 22, 1992, letter denying ASH's petition for regulation of ETS as a carcinogen Jan-Feb 1993 EPA declares ETS a "group A carcinogen" which kills over 3000 annually from lung cancer alone Labor Secretary Lynn Martin directs OSHA to begin a separate proceeding for tobacco smoke as soon as possible as it "is one of the most significant matters facing OSHA" and orders OSHA to prepare an emergency temporary standard Mar-Apr 1993 May-Jun 1993 Court refuses OSHA's request to dismiss ASH's suit, holds that OSHA's denial of ASH's cancer petition is a final reviewable order, and directs OSHA to respond by mid-July Jul-Aug 1993 ASH files new petition for emergency temporary standard banning ETS in the workplace

vii TABLE OF ATTACHMENTS ATTACHMENT NUMBER PAGE CITED IN PETITION 1. EPA Report, "Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders" (January 8, 1993) ...... 1, 2, 5, 6, 9 2. Statement by then Secretary of Labor Lynn Martin, issued as a U.S. Department of Labor news release, January 14, 1993 . . . . . . . . . . . . 2, 15 3. Swoboda, F., "OSHA is told to Proceed on Smoking Rules", Washington Post, January 15, 1993 . . . . . . . . . . . . . . . . . . . . . 2 4. Statement to Action on Smoking and Health from President (then Governor) Bill Clinton, June 24, 1992 . . . . . . . . . . . . . . . . . . . . . . 2 5. Burros, M., "Hillary Clinton's New Home: Broccoli's In, Smoking's Out," New York Times (Feb. 2, 1993) . . . . . . . . . . . . . . 2 6. ASH Petition to OSHA for permanent regulation of ETS, docketed as No. 991, February 26, 1992 . . . . . . . . . . . . . 3 7. ASH Petition to OSHA for rulemaking under OSHA's Cancer Policy, docketed as No. 3-1030, March 10, 1992 . . . . . . . . . . . . . . 3 8. ASH Petition to OSHA for regulation of environmental tobacco smoke as a potential occupational carcinogen, July 31, 1992 .......... 3, 5, 7-14, 19, 20, 22-27 9. Action on Smoking and Health(ASH) v. Department of Labor, U.S. Court of Appeals for the District of Columbia Circuit, Order dated May 20, 1993 . . . . . . . . . . . . . . . . . 4 10. Statement by then EPA Administrator William K. Reilly, issued as a U.S. Environmental Protection Agency "Environmental News" release, January 7, 1993 ...... 6 11. Novello, U.S. Surgeon General Antonia, "Are You Bothered By Other People's Tobacco Smoke?", USA Today (June 11, 1991) . . . . . . . . . . . . . . . 14

viii 12. U.S. Department of Health and Human Services "Vital and Health Statistics" Series 10, No. 184, December 1992 . . . . . . . . . . . 27 13. Excerpt, ASH Special Report: "Involuntary Smoking: The Factual Basis for Action", 1993 ...... 27 14. Memorandum from then Secretary of Labor Lynn Martin to Acting Director of OSHA, Dorothy Strunk, "Environmental Tobacco Smoke in the Workplace", January 13, 1993 ....... 28

$ U.S. DEPARTMENT OF LABOR OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION PUBLIC PETITION FILED PURSUANT ) TO 29 U.S.C. 651 ET SEQ. AND ) 29 C.F.R. §1911.12 FOR AN ) DOCKET NO. EMERGENCY TEMPORARY STANDARD ) REGULATING ENVIRONMENTAL ) TOBACCO SMOKE ) Action on Smoking and Health(ASH) petitions the Acting Assistant Secretary of Labor for Occupational Safety and Health to issue an emergency temporary standard prohibiting smoking in the workplace. Pursuant to 29 U.S.C. 655(c), the grounds for the requested emergency temporary standard are that: (1) exposure to environmental tobacco smoke presents a serious risk of cancer, heart disease, various respiratory illnesses and other grave dangers to employees, and (2) such emergency standard is necessary to prevent tens of thousands of deaths, disabling illnesses, and other serious health problems which would occur to American workers during the time necessary to proceed by a normal notice-and-comment rulemaking proceeding. I. EXPOSURE TO ENVIRONMENTAL TOBACCO SMOKE PRESENTS A GRAVE DANGER TO EMPLOYEES A. EPA Report Amplifies Grave Danger The recently released EPA report entitled "Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders" (Attachment 1) reinforces the findings of other major medical and scientific or anizations that environmental tobacco smoke resents m ~ g p O ~ a grave danger to employees. The EPA report concluded that "ETS is .p

2 a human lung carcinogen, responsible for approximately 3,000 lung cancer deaths annually in U.S. nonsmokers." (Attachment 1, p.1-1). Following release of that report then Secretary of Labor, Lynn Martin announced that: "This is an issue that requires our immediate attention. There is a growing body of evidence that exposure to secondhand smoke is hazardous to the health of nonsmokers." (Attachment 2). She then ordered OSHA to prepare a emerctency temporary standard. (Attachment 3). Although she was told that it would be impossible for OSHA to draft such a proposal before her term ended, her request clearly evidences her recognition that ETS presents such a grave danger to employees that it requires emergency regulation. When Secretary of Labor Robert B. Reich took office only a few days later he immediately demonstrated his concern for the risk that environmental tobacco smoke presented to workers. According to counsel, he requested that OSHA complete its report on the regulatory options for ETS "as expeditiously as possible". Such a request was fully consistent with President Clinton's campaign statement in which he noted that workplace smoking is a very important issue, (Attachment 4) and with the First Lady, Hillary Clinton's ban on smoking in the White House (Attachment 5). B. Evidence of Grave Danger Has Grown Substantially As then Secretary Martin noted, the evidence of the hazardous nature of tobacco smoke to employees has grown. When Action on Smoking and Health filed a Citizen Petition with OSHA on May 19, 1987 requesting OSHA to promulgate an emergency temporary standard