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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

3 limiting or banning environmental tobacco smoke in the workplace, the evidence of the grave danger of tobacco smoke to American workers was just beginning to emerge. The U.S. Surgeon General and the National Research Council of the National Academy of Sciences had both declared that ETS caused lung cancer and other diseases in healthy nonsmokers. Unfortunately, OSHA did not find the determinations of these two eminent bodies to constitute sufficient evidence of the grave danger of tobacco smoke, and OSHA in 1989 declined to issue an emergency temporary standard, a decision which was upheld by the court in ASH v. OSHA No.89-1656 (D.C. Cir. May 10, 1991) 59 U.S.L.W.2728. Subsequently, on February 26, 1992, ASH filed a Petition requesting a rulemaking regulating passive tobacco smoke under OSHA's general workplace standards, 29 U.S.C. §655(b) and 29 CFR §1911.3. Then on March 10, 1992, ASH initiated a request for rulemaking under OSHA's Cancer Policy. These petitions have been docketed respectively as No. 991 and No. 3-1030. (Attachment 6 and Attachment 7, incorporated herein by reference) Then on July 31, 1992, ASH filed another Cancer Petition requesting a rulemaking proceeding under OSHA's Cancer Policy, 29 CFR Part 1990. That petition contained additional evidence of the hazardous nature of tobacco smoke and included many of the more recent scientific studies which further documented the urgent need for OSHA to ban tobacco smoke in the workplace. (Attachment 8, incorporated herein by reference)

4 When OSHA denied that Petition for the issuance of a standard regulating environmental tobacco smoke as a potential occupational carcinogen by a letter dated October 30, 1992, ASH petitioned the U.S. Court of Appeals for the District of Columbia Circuit on December 22, 1992 to review and set aside the determinations contained in the letter. On May 20, 1993, the Court ruled in ASH's favor and refused to dismiss the lawsuit as requested by OSHA. Additionally, the Court held that OSHA's October 30, 1992 letter "meets the criteria of a final, reviewable order," and also directed OSHA to respond to the Court by July 19, 1993 on further proceedings. (Attachment 9, ASH v. U.S. Department of Labor, No. 92-1661(D.C. Cir.)). Subsequent to the filing of ASH's petitions, the EPA released its final report on "Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders" on January 8, 1993.. It contained more than 200 studies of the dangers of environmental tobacco smoke which had been published and peer reviewed subsequent to ASH's 1987 request for an emergency regulation. (See Appendix Item 2). As previously stated, then Secretary Martin herself realized that the evidence of the grave danger of tobacco smoke was now so massive that an emergency temporary regulation was the appropriate measure for OSHA to take. That was six months ago. What the Secretary of Labor considered so serious she wanted to regulate immediately, remains unregulated.

5 Even though her successor Secretary of Labor Robert B. Reich is said, through counsel, to have ordered OSHA to proceed expeditiously, no proposed rulemaking has been undertaken either on the Department's own initiative or in response to the various petitions filed by ASH. While ASH appreciates that it takes time for a new administration to get organized, lives are nonetheless at continued risk from exposure to ETS. Consequently, due to the grave danger of the risk posed by Environmental Tobacco Smoke, Action on Smoking and Health is filing this new Emergency Temporary Standard Petition to prompt OSHA to finally promulgate a regulation prohibiting tobacco smoke in the workplace. C. Cancer Evidence Has Accumulated In addition to the earlier reports of the U.S. Surgeon General and the National Research Council of the National Academy of Sciences, (Attachment 8:Exhibits 15 and 20 respectively) there is a growing body of evidence on the carcinogenicity of environmental tobacco smoke. This evidence includes: 1. EPA report The recently released EPA report on "Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders" represents the latest and most comprehensive assessment to date of the grave danger of environmental tobacco smoke. The report concludes that ETS is a human lung carcinogen, responsible for approximately 3,000 lung cancer deaths a year among U.S. nonsmokers. (Attachment 1, p.1-1) In announcing the release of the study then EPA Administrator William K. Reilly noted that the

6 "risk assessment adds new peer-reviewed evidence to the growing health consensus that smoking is not just a health danger for smokers, but a significant risk for non-smokers.... " (Attachment 10) He stated further that: Tobacco smoke has long been recognized as a major cause of death and disease, especially lung cancer and chronic respiratory disease in smokers. In recent years there has been concern that non-smokers may also be at increased risk as a result of their exposure to the smoke exhaled by smokers and given off by the burning end of cigarettes, pipes or cigars. This smoke contains more than 4,000 substances, at least 43 of which cause cancer in humans or animals and many of which are strong eye or respiratory irritants. The lung cancer findings in EPA's assessment are based on several important analytical findings: first, the chemical and physical similarity of ETS to that inhaled by smokers; second, the known lung carcinogenicity of tobacco smoke to smokers; third, the known exposure to ETS and uptake by the human body; and fourth, a thorough and comprehensive review of more than 30 studies in both the Untied States and abroad that examined the relationship between lung cancer and exposure to secondhand smoke in people who never smoked, usually the spouses of smokers. EPA concluded from the total "weight of evidence" of all the studies that ETS increases the risk of lung cancer in non-smokers. The EPA concluded that ETS should be classified as a known human carcinogen. As a known human carcinogen the EPA officially designated ETS as a "Group A carcinogen," the Agency's category of greatest scientific certainly for carcinogens. (Attachment 1, pp.1- 3, 1-4, 1-8, 4-28, 5-68 and 6-29) The EPA clearly determined that ETS constitutes a grave danger to nonsmokers and one for which no safe lower level of exposure is known or believed to exist.

7 2. National Institute for Occupational Safety and Health In 1991 the National Institute for Occupational Safety and Health (NIOSH) concluded that environmental tobacco smoke "is potentially carcinogenic to occupationally exposed workers." (Attachment 8:Exhibit 2) Most significantly, NIOSH reached this conclusion after careful review of the then existing research, including reports of the Surgeon General of the United States and numerous epidemiological studies of nonsmokers exposed to ETS. Noting that it considered OSHA's Cancer Policy the most appropriate for identifying occupational carcinogens, NIOSH went on to state that it "considers ETS to be a potential occupational carcinogen in conformance with the OSHA carcinogen policy (29 CFR 1990]." NIOSH made the results of its research and analysis publicly known in June 1991 by issuing its Current Intelligence Bulletin 54 (CIB 54), entitled "Environmental Tobacco Smoke in the Workplace". (Attachment 8:Exhibit 2) In CIB 54, NIOSH recommended that "the risk of developing cancer should be decreased by minimizing exposure to ETS", and that employers should reduce ETS exposures to the "lowest feasible concentration." (Attachment 8:Exhibit 2, p.12) In outlining how ETS exposure can be reduced to the lowest feasible level, NIOSH noted that ETS is most effectively controlled simply by eliminating tobacco use from the workplace. Quoting the Surgeon General's 1986 report on involuntary smoking, NIOSH reiterated that, "the simple separation of smokers and nonsmokers

8 within the same airspace may reduce, but does not eliminate, the exposure of nonsmokers to ETS." Recognizing that "ETS can spread throughout the airspace of all workers," when smoking is allowed in indoor worksites, ?aIOSH concluded that "[t]he most direct and effective method of eliminating ETS from the workplace is to prohibit smoking in the workplace." (Attachment 8: Exhibit 2, p.13) Given that OSHA's Cancer Policy specifies NIOSH as one of the three agencies it suggests OSHA may want to confer with to obtain recommendations regarding "the identification, classification, or regulation of any potential occupational carcinogen," 29 CFR 1990.104, 29 CFR 1990.106(b)(2), it appears NIOSH's finding that environmental tobacco smoke is a potential occupational carcinogen should be given considerable weight and deference by OSHA. 3. National Cancer Institute The National Cancer Institute has concluded that ETS is carcinogenic. In fact, "it is the official position of this Department that nonsmoker exposure to tobacco smoke, at those levels commonly found in indoor environments where smoking is permitted, increases the risk of lung cancer and possibly other chronic diseases. We know of no valid arguments to the contrary." (Attachment 8:Exhibit 3) 4. Pertinent New Lung Cancer Studies Additional pertinent studies on the respiratory health m effects of passive smoking were released after the cutoff date for ~ O inclusion in the EPA report. The newest studies are considered W „.a m

9 consistent with the EPA report's conclusion that ETS exposure increases the risk of lung cancer in nonsmokers. As stated in the addendum to the report: Two of the new studies are case-control studies of ETS and lung cancer in U.S. female nonsmokers (Stockwell et al., 1992; Brownson et al., 1992). Stockwell et al. conclude that "long-term exposure to [ETS) increases the risk of lung cancer in women who have never smoked." Similarly, Brownson et al. conclude, "Ours and other recent studies suggest a small but consistent increased risk of lung cancer from passive smoking." In an autopsy study of Greeks who had died of causes other than respiratory diseases, Trichopoulos et al. (1992) found an increase in "epithelial, possibly precancerous, lesions" in the lungs of nonsmoking women who were married to smokers. The authors concluded that their results "provide support to the body of evidence linking passive smoking to lung cancer...."(Attachment 1, p.ADD-1) 5. Cervical And Other Cancer Risks ETS causes cancers in sites in the body other than the lung, including the cervix. Cigarette smoking and exposure to passive smoke as risk factors for cervical cancer have been described in a paper by Slattery and others in a population-based case-control study conducted in Utah. For smokers who are also exposed to ambient tobacco smoke, the risk estimate associated with passive smoke exposure for 3 or more hours per day was 2.96. The increased risk from passive smoking was even greater in women who were not smokers--3.43. (Attachment 8:Exhibit 40) Thus, in addition to lung cancer, ETS presents a very serious risk of cervical cancer for women. A number of other studies have found passive smoking to significantly increase risks at body sites other than the lung and

10 cervix, including those studies cited in the Report of the National Research Council "Environmental Tobacco Smoke: Measuring Exposures and Assessing Health Effects". Thus, passive smoking is associated with tumors of the brain, nasal sinus, breast, endocrine glands, hematopoietic tissues and also leukemia and lymphoma. (Attachment 8:Exhibit 20, pp.250-256) D. Evidence Of The Grave Danger Of ETS To The Heart Has Also Grown The Interagency Task Force on Environmental Cancer, Heart, and Lung Disease Workshop on ETS concluded that the effects of ETS on the heart might present an even greater risk than its cancer causing effects on the lungs. "EPA Indoor Air Facts No. 5". (Attachment 8:Exhibit 10) Subsequent research, some of which has been summarized in NIOSH Bulletin CIB 54 pp. 9-11, has confirmed the deleterious effects of ETS on the heart. (Attachment 8:Exhibit 2) Since that publication, George Howard of the Bowman Gray School of Medicine in Winston-Salem, N.C. has released a new study that clarifies how ETS contributes to heart disease. That study found that exposure to environmental tobacco smoke significantly narrows the arteries of nonsmokers, thereby making them more prone to clogging by cholesterol, and increasing their risk of heart disease. Addressing the Annual Meeting of the American Heart Association, Howard said that researchers also found that the more hours per week a person was exposed to secondhand smoke the narrower the arteries became. People who had never smoked and who

11 said that they were not exposed to secondhand smoke had the least artery narrowing. (Attachment 8:Exhibit 41 and 42) Additionally, in another recent study which specifically focused on the workplace, researchers at the University of California in Los Angeles found that exposure to tobacco smoke also increased the risk of heart disease by raising the cholesterol levels of nonsmokers. The findings, which were presented by UCLA physiologist James White at the Eighth World Conference on Tobacco or Health, and which used carbon dioxide (CO) as an index of cigarette smoke in the workplace, showed that carbon dioxide levels were nearly three times higher in offices with smokers compared with smokefree offices. The researchers found that passive smokers had greater CO levels during the workday. Increased carbon dioxide caused the passive smokers to have higher total cholesterol levels and "significantly depressed" high-density lipoprotein (so-called good cholesterol) than nonsmokers. Women also had higher levels of low- density lipoprotein (so called bad cholesterol). Recognizing that high total cholesterol and low HDL levels are considered risk factors for heart disease, the study concluded that "nonsmoking workers are at increased risk of developing coronary heart disease resulting from exposure to second-hand tobacco smoke." They estimated that ETS "increased heart disease risk by ~ 10 to 15 percent in men and between 26 and 39 percent in women". ~ O .~ W N

12 Urging workplace smoking bans, White predicted "that in 10 years smoking will be prohibited in all indoor public facilities. Tobacco smoke is dangerous stuff." (Attachment 8:Exhibit 43 and 44) In addition, A. Judson Wells in "An Estimate of Adult Mortality in the United States from Passive Smoking" (Attachment 8:Exhibit 36) has calculated that 32,000 deaths each year from heart disease are attributable to passive smoking. Two other recent studies have reinforced the fact that the risk of death from heart disease due to environmental tobacco smoke exposure is even greater than for lung cancer. The first study by Stanton A. Glantz and William W. Parmley on "Passive Smoking and Heart Disease" concluded that there is a 10 times greater risk of death from ETS-induced heart disease than lung cancer and that "these (heart disease) deaths contribute greatly to the estimated 53,000 deaths annually from passive smoking." (Attachment 8:Exhibit 45, p.10) Of these 53,000 ETS deaths annually, 37,000 are attributable to heart disease compared to 3,700 for lung cancer. (Attachment 8:Exhibit 45, p.4) Glantz and Parmley also noted that "nonsmokers [are] more sensitive to lower exposures to cigarette smoke than are smokers." The second study by Kyle Steenland of NIOSH which was released just last year summarized the findings by Glantz and Parmley and then reviewed some newer experimental and epidemiologic studies, all of which reinforced the earlier findings the ETS has a very adverse effect on the heart. Arriving at an estimate of 35,000 to 40,000 heart disease deaths attributable to ETS among never-smokers

13 and former smokers, it was noted that this estimate is amazingly close to the only prior risk assessment of ETS performed by Judson Wells. This is particularly impressive because Wells used different data and assumptions in his analysis, but came to a similar estimate. (Attachment 8:Exhibit 46) Then, in June 1992, upon review of these and other studies of environmental tobacco smoke, the American Heart Association (AHA) determined that the "risk of death due to heart disease is increased about 30% among those exposed to environmental tobacco smoke at home and could be much higher in those exposed in the workplace, where higher levels of environmental tobacco smoke may be present." The AHA "concluded that environmental tobacco smoke is a major preventable cause of cardiovascular disease and death" and that it should be eliminated from the workplace as well as the home and public buildings. (Attachment 8:Exhibit 47) Citing that AHA study on "Environmental Tobacco Smoke and Cardiovascular Disease," along with the EPA document on lung cancer and passive smoking, the American Cancer Society, the American Heart Association, and the American Lung Association, united as the Coalition on Smoking OR Health wrote to the Secretary of Labor and asked her to "expedite action to protect workers from risks posed by environmental tobacco smoke (ETS) in the workplace." The Coalition urged the Secretary "to move forward on this issue as soon as possible". (Attachment 8:Exhibit 48) Thus, there is a growing body of evidence documenting that American workers are at an even far greater risk of heart disease

14 death from exposure to ETS than lung cancer. Therefore, in addition to the grave dangers of cancer deaths, there is also a grave danger of heart disease death from ETS exposure in the workplace. E. ETS Is Now The Third Maior Cause Of Death In The U.S. The EPA risk estimate of 3000 lung cancer deaths annually should be more than enough evidence that ETS presents a grave danger to U.S. workers. Lung cancer deaths, however, are only a fraction of the life threatening risks presented by ETS to nonsmokers. When the heart disease studies discussed above and noted in the EPA report are taken into account along with the other cancer risks, ETS is shown to be the cause of 53,000 U.S. deaths a year. This makes ETS the third major cause of all U.S. deaths-- after active smoking (by smokers) and alcohol! Annual Deaths, Passive Smoking Heart Disease . . . . . 37,000 Lung Cancer . . . . . . 3,700 Other Cancers . . . . . 12,000 TOTAL . . . . . . . . 53,000 Not only did Glantz and Parmley reach this conclusion which they published in "Circulation" in 1991 (Attachment 8: Exhibit 45), but that estimate was reinforced by the subsequent Steenland study. (Attachment 8:Exhibit 46) Most significantly, U.S. Surgeon General, Dr. Antonia C. Novello has also concluded that "an estimated 53,000 Americans die each year from exposure to tobacco smoke of others." (Attachment 11) Surely, a substance that kills an estimated 53,000 people a year and is the third major cause of death in the U.S., constitutes

4 15 a grave danger. As the former Secretary of Labor indicated, "the body of evidence that exposure to environmental tobacco smoke is hazardous to the health of nonsmokers" has indeed grown substantially. (Attachment 2) Moreover, it is a far greater risk to employees than all the other risks now regulated by OSHA. II. AN EMERGENCY TEMPORARY STANDARD IS NECESSARY TO PROTECT EMPLOYEES An Emergency Temporary Standard is necessary to protect U.S. employees from the grave danger of environmental tobacco smoke. Former Secretary Lynn Martin herself recognized the necessity of an emergency temporary standard. Although many states and local governments as well as private employers have banned tobacco smoke in the workplace, this piecemeal haphazard approach is totally unsatisfactory. Leaving continued progress toward a smoke free environment to the whim and personal preference of employers and local governments is not appropriate. OSHA's duty is to protect employees in the workplace. Protecting employees from exposure to ETS is no more optional than protecting them from exposure to asbestos, benzene or any other life threatening substance. Furthermore, as shown above, ETS is such a grave danger to employees that it necessitates immediate regulation. More workers die annually from occupational exposure to ETS than from all the cancer chemicals currently being regulated. (See chart p.22) Every day that ETS remains unregulated, additional workers are put at serious risk of disease and death. OSHA is the only federal agency with the authority to protect these workers. To prevent the continued occupational exposure of American workers to ETS, OSHA

16 needs to issue an emergency temporary standard prohibiting smoking in the workplace. III. ENVIRONMENTAL TOBACCO SMOKE QUALIFIES FOR EMERGENCY REGULATION Environmental Tobacco Smoke amply meets the statutory requirements for promulgation of an emergency temporary standard. According to 29 U.S.C. §655(c), there are only two criteria for the Secretary to consider in deciding whether to issue an emergency temporary standard, they are: (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger. As discussed above, there is an abundance of evidence that environmental tobacco smoke poses a grave danger of cancer, heart disease, various respiratory illnesses and other diseases. Moreover, ETS presents a graver danger to American workers than any other substance regulated by OSHA. Further, as shown above, the issuance of an emergency regulation is necessary to prevent tens of thousands of deaths, disabling illnesses, and other serious health problems which will continue to occur to U.S. employees during the extended time involved in proceeding by the normal permanent notice-and-comment rulemaking procedures. IV. PROPOSED RULE BANS SMOKING In light of the significant body of evidence that now documents that environmental tobacco smoke presents a grave danger to U.S. workers, petitioners respectfully request that the Acting Assistant Secretary for Occupational Safety and Health immediately

17 publish an emergency temporary standard prohibiting smoking in all indoor workplaces, including motor vehicles, under its jurisdiction.1 V. A TOTAL SMOKING BAN IS REQUIRED F~. The OSH Act and Judicial Precedent Comoel A Total Prohibition Both the Occupational, Safety and Health Act itself and judicial precedent support a total ban on smoking in the workplace. Moreover, anything less than a total ban will not satisfy OSHA's duty to "set the standard which most adequately assures...that no employee will suffer material impairment of health...." 29 U.S.C. §655(b)(5). Applying the OSH Act to workplace smoking, the court rejected a partial limitation on smoking in the case of Building and Construction Trades Dept. v. Brock, 838 F.2d 1258 (1988). In that asbestos case, OSHA had issued limited smoking control provisions in its final regulations. Even though OSHA had banned smoking in all areas where the level of airborne asbestos exceeds the PEL, the court remanded that portion of the case, among other reasons, because of OSHA's failure to require even more vigorous measures to reduce smoking-related asbestos risks. 1ASH notes that NIOSH did suggest in CIB 54 that separate ventilation might be used as an interim measure but under the criteria governing occupational carcinogens, a total ban is required as OSHA's duty is to ensure a "no occupational exposure level" to Class A carcinogens whenever feasible. Since as has been shown in ASH's Cancer Petition (Attachment 8), eliminating tobacco smoke from the workplace is technologically and economically feasible, partial reduction in risk would not ultimately satisfy OSHA's responsibility. I

18 The court began its analysis by referring to § 6(b) (5) of the OSH Act which states that OSHA "shall set the standard which :nost adequately assures, to the extent feasible, on the basis c. the best available evidence that no employee will suffer material impairment of health...." 29 U.S.C. § 655(b)(5) (Emphasis .-.lded in court decision) Then, citing the holding in Public Citizen Health Research Group v. Tyson, 796 F.2d 1479, 1505 (D.C. Cir. 1986), the U.S. Court of Appeals for the District of Columbia Circuit noted that when it is possible to "further reduce a significant health risk and is feasible to implement, the OSH Act compels the agency to adopt it (barring alternative avenues to the same result)." (emphasis in original). In Building Trades, 796 F.2d at 1271, the court stated further: "we take the principle to be applicable to any proposal." The court then applied the principle to the smoking-related asbestos hazard before it and remanded the case to OSHA so that it could fulfill its duty under Public Citizen. In response, OSHA amended the regulations governing occupational exposure to asbestos, 29 CFR 1910 et.sea. In regulations published in the Federal Register on February 5, 1990, OSHA effectively banned smoking in all work areas where employees were occupationally exposed to asbestos, 29 C.F.R. 1910.1001. B. Increased Ventilation Is Not Adequate As the former Surgeon General reported, "simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate, exposure of nonsmokers to environmental tobacco

19 smoke. The first response to the identification of a carcinogen in the work environment should be to eliminate that exposure. It is only when elimination of the exposure is not possible, that we should explore establishing acceptable levels for the work site ...the simplest, least expensive, and most effective way to accomplish this protection is to establish a smoke-free workplace." Additionally, since there is ample evidence that ETS causes cancer in humans and, therefore, should be classified as a Category I Potential Carcinogen, the OSHA cancer regulations mandate a "no occupational exposure level" whenever feasible. Unlike Category II Potential Carcinogens (29 CFR 1990.111(i)), a no permissible exposure level is contemplated in the regulations for Category I POC's. Most significantly, as previously stated, the National Institute for Occupational Safety and Health, which is the scientific advisory body for OSHA, has concluded that ETS is "a potential occupational carcinogen in conformance with the OSHA carcinogen policy (29 CFR 1990)." Further, as discussed more fully above, NIOSH concluded that "(t]he most direct and effective method of eliminating ETS from the workplace is to prohibit smoking in the workplace." (Attachment 8:Exhibit 2) Increased ventilation then is simply not appropriate. At best it could reduce, but not eliminate, exposure to ETS. It, therefore, totally fails to meet the OSHA criteria for controlling ~ 07 a carcinogen in the workplace. CD W G'? GD

! 20 In summary, increasing ventilation will not solve the problem of ETS in the workplace. As stated in EPA's "Indoor Air Facts No. 5" (Attachment 8:Exhibit 10): Environmental tobacco smoke can be totally removed from the indoor air only by removing the source (cigarette smoking). Separating smokers and nonsmokers in the same room may reduce, but will not eliminate, nonsmokers' exposure to tobacco smoke. Placing smokers and nonsmokers in separate rooms that are on the same ventilation system also may reduce nonsmokers' exposure to tobacco smoke; this approach, however, will probably not eliminate exposure to tobacco smoke since most pollutants readily disperse through a common air space and since, in public or commercial buildings, most HVAC systems recirculate much of the contaminated indoor air. Research indicates that total removal of tobacco smoke through ventilation is both technically and economically impractical. [Emphasis supplied] Therefore, a total smoking ban is the only feasible way to control ETS in the workplace. Even if some businesses are willing to make the massive and costly changes in their ventilation systems so as to allow smoking, albeit with lower tobacco smoke concentration levels, this would not be sufficient because OSHA's duty is to protect the workers from potential occupational carcinogens to the extent feasible. Since, as will be subsequently shown, a total ban is economically and technologically feasible, a partial reduction in risk would not satisfy OSHA's responsibility. C. Eliminating Tobacco Smoke From the Workplace Is Technologically And Economically Feasible Technologically it is so feasible to eliminate tobacco smoke in the workplace that all it takes is a simgle notice to employees of the new regulations and their effective date. This technical feasibility has been demonstrated over and over again as numerous

21 public and private employers have already banned workplace smoking with little or no problem. Economically, the effect of a ban on smoking in the workplace would be a substantial net savings to employers. The nominal cost for posting the new policy, and perhaps some no smoking signs, would be offset many times over by the savings employers would receive from health care cost containment, fire loss prevention, reduced legal costs and even decreases in janitorial costs. In essence, there would be substantial long term savings after a de minimis initial cost. VI. INTENDED EFFECT IS TO SAVE LIVES AND MONEY The requested regulation of environmental tobacco smoke is intended to prevent the unnecessary disease and death now caused to American workers. It would also have substantial economic and safety benefits. A. Life And Health Effects 1. Seventy-five million workers are at risk By OSHA's own admissions 75 million workers are exposed to ETS in the workplace and are, therefore, at substantial risk of disease and death. No other substance has been shown through numerous scientific studies to put such a large number of workers at such great risk of death and other material impairment to their health. Thus, from the prospective of the sheer size of the workforce that would be protected, emergency regulation of ETS would beneficially effect the life and health of American workers.

22 2. ETS is the number one workplace carcinogen Environmental Tobacco Smoke is the worst occupational carcinogen of all. The estimated number of annual deaths from ETS far exceeds the combined annual deaths from all the other class A carcinogens currently being regulated (Attachment 8:Exhibit 38) as shown in the following chart: ESTIMATED ANNUAL DEATHS FROM CLASS A CARCINOGENS Substance.............Cancer Deaths Environmental Tobacco Smoke...5,000 Radon ......................... 4,000 Vinyl Chloride ................... 27 Airborne Radionuclides ........... 17 Asbestos ......................... 15 Coke-Oven Emissions .............. 15 Benzene ........................... 8 Arsenic ........................... 5 3. Saving lives is the most significant effect The effect of greatest significance in any OSHA regulation is obviously the potential number of lives that can be saved. With an estimated 53,000 nonsmokers lives at risk annually from ETS and at least another 434,000 smokers who die annually from tobacco diseases, almost a half million lives are at risk from tobacco smoke each year in the U.S. alone. Of the 53,000 nonsmokers who are exposed annually to ETS, an estimated 26,500 deaths could be prevented each year if ETS were banned from the workplace. After reviewing existing risk analysis studies, Repace and Lowrey calculated that "50% of the average population risk from passive smoking is estimated to be workplace- related." (Attachment 8:Exhibit 38, p.33) Thus, applying that estimate to the 53,000 nonsmokers at risk of death annually from

23 ETS, half (50% of 53,000) or 26,500 would be at risk annually of death from occupational exposure to ETS. Additionally, banning smoking in the workplace would also benefit smokers by reducing their exposure to ETS as well as saving the lives of those who choose to quit. No other regulation by OSHA comes close to having this potential life saving impact. Finally, it must be stressed that tobacco smoke contamination is not necessary to any industrial or workplace process. Indeed, its presence impedes all workplace activities, as well as exposing all workers to unnecessary, substantial health hazards. The removal of ETS from the workplace, moreover, requires no costly retooling or remodeling--only the cost of a no-smoking sign. B. Economic Effects 1. Substantial net savings The effect of a ban on smoking in the workplace would be substantial net financial savings to employers. These economic savings would result from employers no longer having to bear the economic burden imposed by those who smoke in the workplace. In "Profits Up in Smoke" Dr. William L. Weis of Seattle University calculated that each smoker costs his employer $4,611 per year including on-the-job expenses for time lost smoking, property damage, janitorial costs and damage to the health of nonsmokers. Eliminating smoking from the workplace would turn almost all those smoking related costs into cost savings. (Attachment 8:Exhibit 63)

24 2. Health care cost containment The primary intended effect of a workplace smoking ban would be to protect the health of the 75 million men and women workers who, OSHA admits, are exposed to ETS at work and who are, therefore, put at substantial risk of disease and death. Since, according to Repace and Lowrey, 50% of the average population risk from passive smoking is estimated to be workplace related (Attachment 8:Exhibit 38, p.33), 26,500 workers a year will, unless protected, be expected to be represented among the 53,000 annual deaths of nonsmokers exposed to ETS. A smoking ban might, therefore, be expected to save, 26,500 lives (50% x 53,000) each year. It will also reduce the number of illnesses and work days lost because of ETS and thus result in recovery of many unnecessary health care costs now born by employers. In this regard, it is significant to note that many employers, including the managers surveyed by Administrative Management Society, cite medical costs and related health insurance premiums as the greatest smoking related costs to businesses. While some of the health care cost savings will result from the reduction of deaths and illnesses for nonsmokers now exposed to ETS in the workplace, additional health care benefits will be realized because of smokers who are prompted to quit because of a prohibition on smoking in the workplace. In addition to the 53,000 nonsmokers who die each year as a result of exposure to ETS, over 400,000 smokers are killed as a result of tobacco use. Most smokers became addicted to nicotine

25 when they were children, many as young as nine. As minors they had no legal capacity to enter into detrimental contracts, and no ability to make an informed consent to the risks of addiction, disease and death. Smokers attempting to end their terrible addiction, therefore, often welcome assistance in doing so. A smokefree workplace can provide the support and incentive that is needed by many workers (80% of whom wish to quit). (Attachment 8:Exhibit 64) Besides the social support, smokefree work environments remove the temptation which is stimulated by the smell of cigarette smoke anywhere in the workplace. Therefore, a smokefree work environment would reduce the risk of death and disease for smokers as well as nonsmokers. Employers recognizing this opportunity to contain health care costs, have often been willing to offer smoking cessation programs to their smoking employees. In this regard it is interesting to note that the Asbestos Information Association advocated for smoking cessation programs as part of the asbestos regulation and that the court found the $200 cost per employee to be "feasible."2 Consequently, OSHA might well want to consider at least encouraging employers to offer smoking cessation programs as part of any regulation banning smoking in the workplace. ZWhile ASH is not requesting smoking cessation as part of its emergency temporary petition, it has no objection to it.

26 3. Fire prevention economic savings Banning workplace smoking would also save on fire safety costs. In addition to its role as a health hazard, workplace smoking is a safety hazard because it causes many office and industrial fires when waste paper or industrial waste are ignited by discarded cigarette butts and ashes. Banning workplace smoking therefore would both reduce financial losses due to actual fires and could be used to negotiate reduced fire insurance premiums. fact, concern for fire safety (and undoubtedly its attendant costs) was a prime motivating factor in the Fortunoff company's decision to no longer hire smokers. (Attachment 8:Exhibit 65) Also, Johns Hopkins Medical Institutions experienced an even greater reduction in smoking related fires from an average of 20 per year before their smoking ban was instituted to zero in the year after the ban began. (Attachment 8:Exhibit 64) 4. Legal financial benefits Additionally, an OSHA ban on smoking in the workplace could protect employers from legal proceedings brought by nonsmokers whose health has been injured by exposure to ETS. Nonsmokers whose health has been injured by exposure to ETS in the workplace have frequently, and successfully, instituted proceedings against their employers. (Attachment 8:Exhibit 66) Substantial awards have been obtained under worker's compensation acts, anti-discrimination laws, negligence and other legal theories. Even more claims can be expected under the new Americans with Disabilities Act(ADA). With over 80 million Americans reported

27 (Attachment 12) to have respiratory conditions (asthma, chronic bronchitis, hay fever, allergic rhinitis, chronic sinusitis and emphysema) which are known to make them sensitive to ETS and millions more vulnerable to tobacco smoke because of heart disease, employers are at a heightened risk of being sued because of tobacco smoke in the worksite. while only a limited number of employees were protected under the Federal Rehabilitation Act, shortly all workplaces with as few as 15 workers will be covered by the ADA. The cases that found that tobacco sensitive nonsmokers are disabled will serve as precedents for similar-but potentially far more numerous lawsuits (Attachment 13). A workplace smoking ban can insulate employers from such claims, and prevent the imposition of an unnecessary burden on the cost of doing business or running an organization. 5. Janitorial costs reduced Even office janitorial costs would be reduced as evidenced by a letter (Attachment 8:Exhibit 67) from Mr. Thomas Hill, Vice President of the Aetna Building Maintenance Co. to Mr. Ed Simone of Unigard Insurance Group reducing the Group's monthly service charge by $500.00 due to the introduction of a nonsmoking policy. Explaining this reduction, Mr. Hill states: Prior to March 1 each smoker's desk had a ashtray to dump and clean, as well as ashes spread over the desktops and on the carpet around the desk. Since March 1, though, we at Aetna have experienced time savings due to smoking not being allowed in office areas. We now don't have to dump and clean ashtrays. The dusting of desktops is easier. Carpets don't need to be edged or shampooed as often. Upholstered furniture is easier to keep clean. Windows don't get dirty as fast, and frequencies have heen reduced. . . We at Aetna, appreciate the

L CJ progressiveness and foresightedness demonstrated by the management at Unigard in formulating and implementing this program. It has made our job easier and less costly for Unigard. VII. CONCLUSION Exposure to environmental tobacco smoke presents a serious risk of cancer, heart disease, various respiratory illnesses and other grave dangers to employees. An emergency temporary standard is necessary to protect employees from these ETS dangers. The primary intended effect of a workplace smoking ban would be to protect the health of the 75 million men and women who, OSHA admits, are exposed at work to ETS, and who are, therefore, put in grave danger of disease and death. Regulation of ETS would also have the effect of producing substantial economic savings, containing health care costs, reducing the cost and incidence of fires, curtailing legal costs and even diminishing janitorial costs. Therefore, ASH respectfully proposes that OSHA immediately promulgate an emergency temporary regulation banning smoking in all indoor workplaces, including motor vehicles, under its jurisdiction. As former Secretary Martin said "resolution of this issue is one of the most significant matters facing OSHA" and it should be treated as "one of the Department's highest priorities" (Attachment 14). Recognizing that the new Administration also realizes that workplace smoking is a very important issue, ASH respectfully urges that OSHA follow the lead of Secretary Reich and ~ proceed "as expeditiously as possible" to issue an emergency ,A Ci C') QD

29 temporary standard prohibiting smoking in all indoor workplaces, including motor vehicles, under its jurisdiction. July 12, 1993 Kathleen E. Scheg ~ Legislative Counsel ACTION ON SMOKING AND HEALTH 2013 H Street, N. W. Washington, D.C. 20006 (202) 659-4310