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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY CO!lMENTS OF THE TOBACCO INSTITUTE ON ENVIRONMENTAL TOBACCO SMORE: A GUIDE TO WORKPLACE SMORING POLICIES October 1, 1990

TABLE OF CONTENTS Page I. GENERAL OBSERVATIONS ..................................... A. Thc Statutory Authority for the Release of the Guide 2 2 in its Present Form is Questionable ................. II. B. The Release of the Workplace Guide is Premature Because of the Inadequacy of the Underlying Scientific Data ..................................... 4 COMMENTS ON SPECIFIC CHAPTERS ............................ 8 COMMENTS ON THE INTRODUCTION ............................. 8 INTRODUCTION ............................................. 14 COMMENTS ON CHAPTER ONE .................................. 16 Chapter 1: What is ETS? ............................ COMMENTS ON CHAPTER TWO .................................. Chapter 2: Measuring ETS ........................... COMMENTS ON CHAPTER THREE ................................ Chapter 3: Scientific Research on Exposure to Environmental Tobacco Smoke and Human Health........ 38 COMMENTS ON CHAPTER FOUR ................................. 45 COMMENTS ON CHAPTER FIVE ................................. 45 Chapter 5: Smoking and Indoor Air Quality in the Workplace ........................................... 50 COMMENTS ON CHAPTER SIX .................................. 54 A. Common-Law Suits ..................................... 55 B. "Handicapped Rights" and Worker Benefit Suits ........ 57 C. Suits by Smokers .................................... 59 19 23 26 31 60 COMMENTS ON CHAPTER EIGHT ................................ Qj 63 C!1 COMMENTS ON CHAPTER NINE .................................~ 65 COMMENTS ON CHAPTER SEVEN ................................ OD Q N COMMENTS ON CHAPTERS TEN THROUGH THIRTEEN ................ *4 67 CONCLUSION .................................................... 69 APPENDIX

ENV I RON!lENTAL TOBACCO SNORE : A GUIDE TO WORKPLACE S1rIORING POLICIES June 25, 1990 Public Review Draft Comments of The Tobacco Institute These comments on the draft Environmental Protection Agency document entitled Environmental Tobacco Smoke: A Guide to Workplace Smoking Policies ("the Policy Guide") are being submitted by The Tobacco Institute, which represents major United States manufacturers of tobacco products. In addition, we have asked a number of independent scientists with expertise in the relevant disciplines to comment on the Policy Guide. These expert reviews are being filed separately with the EPA. They will be referred to in these comments as appropriate. To facilitate consideration by the Agency, we have organized our detailed comments under the chapter headings employed in the draft Policy Guide. We emphasize at the outset, however, that our problems with the Policy Guide go well beyond the substance of individual statements or discrete omissions from the text of the document as currently written. We thus offer immediately below a series of more general observations, raising fundamental questions about the document's objectives and the process by which the current

2 draft was prepared, as well as the overall impression that it conveys with respect to environmental tobacco smoke ("ETS"). I. GENERAL OBSERVATIONS A. The Statutory Authority for the Release of the Guide in Its Present Form Is Questionable. There-are substantial questions about the statutory authority for the Policy Guide, at least in its present form, as well as the related ETS risk assessment and technical compendium. The purported statutory authority for these and other documents relating to smoking is Title IV of the Superfund Amendments and Reauthorization Act of 1986 ("the Act" or "SARA"). Section 403(a)(1) of the Act "directs the Agency [EPA] to establish a research program to gather information on all aspects of indoor air guality." Pub. L. 99-499 (emphasis supplied). Consistent with this general mandate, the research program authorized by Section 403(b) of the Act contemplates the measurement of various pollutant concentrations and their strengths and sources, the identification of high risk buildings, research into the health effects of indoor air pollution and the development of control technologies and other mitigation measures. Neither the text nor the legislative history of the Act provides the Agency with authority to undertake a crusade against smoking, to provide legal advice to smokers or nonsmokers concerning smoking in the workplace or in other locations, to attempt to encourage litigation against employers who have chosen to do less than

- 3 - implement a complete smoking ban or to provide advice to employers concerning cost savings that, in the view of some members of the Agency's staff, may result from severely restricting or banning smoking in the workplace. Yet that is precisely what the draft Policy Guide attempts to do. Moreover, Section 404 of Title IV expressly states that the Act is not to be construed to authorize any regulatory programs but is to be limited to research, development, coordination and information dissemination. The Policy Guide is a thinly veiled attempt to circumvent this restriction by accomplishing indirectly what Congress has forbidden the Agency to do directly: regulate workplace smoking. Even if the Act did provide EPA with authority to address workplace smoking, it would be entirely inappropriate for the Agency to delegate the drafting of the pertinent policy document to a contractor who has an economic interest in the proliferation of smoking restriction policies. The Policy Guide was drafted by Robert Rosner and Robin Simons of the Smoking Policy Institute (SPI) in Seattle, which is in the business of counseling employers on the implementation of smoking policies and operating smoking cessation clinics.l1 1/ SPI therefore has a strong vested interest in encouraging the draft Policy Guide's readers to believe that ETS is a serious "problem" requiring the kind of "solution" provided by SPI. The Agency's decision to contract out the writing of the Policy Guide to an organization having a vested financial (footnote cont'd)

4 In addition, neither of the Policy Guide's authors possess expertise relating to the health effects, if any, of exposure to ETS -- or, indeed, with respect to any other constituent of indoor air. Yet the Policy Guide repeats -- and accepts without any serious consideration -- virtually every health effects claim that has ever been made about both active smoking and exposure to ETS. Similarly, the Policy Guide purports to reach definitive conclusions ona host of other issues -- the legal implications of workplace smoking, public attitudes about smoking, the claimed economic consequences of permitting smoking in the workplace, to mention a few -- even though neither the drafters of the Policy Guide nor the Agency staff members with whom the drafters worked possess even minimal expertise in those areas. B. Release of the Workplace Guide Is Premature Because of the Inadequacy of the Underlying Scientific Data. Also objectionable is the process through which the Policy Guide was prepared and the timing of its release. The Policy Guide was drafted -- and comments are being sought -- even though the Agency's risk assessment and technical compendium on ETS have not been completed. The ETS risk assessment is, of course, still subject to outside scientific review. The ETS technical compendium, which should have been (footnote cont'd) interest in the result cannot be justified under any view of the Agency's authority under SARA.

- 5 - the foundation for the Agency's risk assessment (or, more precisely, the foundation of an Agency decision as to whether an ETS risk assessment should be undertaken) has not even reached the point at which it could be referred to a scientific advisory panel for review. Only after completion of the technical compendium should EPA have decided whether a risk assessment should or could be prepared. Moreover, any research needs identified in the compendium should have been satisfied before the commencement of any risk assessment project. Finally, the preparation of a policy guide -- a risk management tool -- should have been delayed pending completion (and peer review) of the technical compendium and risk assessment. The Agency's failure to undertake these tasks in a logical order may explain some of the flaws of the draft Policy Guide. It also suggests that the substance of the current draft reflects political preferences rather than scientific considerations. In pushing ahead now with a risk management document, the Indoor Air Division has completely ignored its own conclusions concerning ETS research needs as well as the views of recognized authorities in the field. A detailed discussion of this point is included in the comments submitted by The Tobacco Institute on the draft ETS risk assessment. In addition, we would refer the Agency to presentations that have been made by Dr. Wayne Ott, former head of the Air, Toxics and Radiation Research Team of EPA's Office of Modeling,

- 6 - Monitoring Systems and Quality Assurance, which is responsible for developing methods for modeling and measuring pollutants in the environment. Dr. Ott recently published an article on EPA's exposure studies, monitoring techniques and future research needs.?/ In the article, Dr. Ott correctly observed that -- [w]ithout accurate knowledge of human exposure or dose, often it is impossible to determine which sources should be controlled and by how much. Filling this critical gap in the complete risk model is necessary to implement a 'risk-based' approach to environmental management. Dr. Ott then went on to discuss the various methods of exposure assessment and monitoring, noting that "[a]lthough many validated methods are available for making ambient measurements, these methods seldom are adequate for monitoring human exposure." Dr. Ott concluded the article by identifying the principal research needs in this area. One of these is the "[s]tudy of environmental tobacco smoke in office buildings." In discussing the results of EPA's Total Exposure Assessment Methodology ("TEAM") studies, Dr. Ott also described the many unanswered research questions suggested by these studies, including "[w]hat is the relative importance of home and workplace exposure to environmental tobacco smoke?" 2/ Ott, W. (1990). Total human exposure: Basic concepts, EPA field studies, and future research needs. J. Air Waste Manage. Assoc. 40:966-975 [hereinafter cited as "Ott"].

- 7 - As these excerpts and the EPA research need documents discussed in our risk assessment comments demonstrate, the exposure data on which a valid ETS risk assessment or workplace regulatory initiative should be based are deficient. At best, it is premature for the Agency to undertake a risk assessment or a workplace Policy Guide until the questions posed by Dr. Ott and repeated in the Agency's own research needs documents are answered. At worst, the draft Policy Guide and the risk assessment are a calculated attempt to mislead, alarm and confuse the public -- using data that the Agency itself has acknowledged to be inadequate.3/ Indeed, the only data on which the Agency relies to justify its release of the Guide are epidemiologic studies of spousal smoking and ETS exposure in the home. As we point out in our separate comments on the draft risk assessment, as well as in our comments below on Chapter Three of the draft Policy Guide, these studies do not establish that ETS causes disease in nonsmokers. It is essential, however, that the procedural issues we have raised not be permitted to obscure our objections to the substance of the Policy Guide. A number of statements in 3/ See, e.g., Report to Congress, Vol. III, p. 20 (1989) There ni after cited as "1989 EPA Report"]. In the 1989 Report, EPA acknowledged that additional work on exposure and on dosimetry have been recommended as the "highest priority research."

- 8 - the Policy Guide are either hopelessly biased or demonstrably incorrect. There is not the slightest indication in the Policy Guide that any of the issues covered are even the subject of controversy -- an impression the drafters of the Guide have been able to convey only by ignoring much of the pertinent scientific literature. Detailed comments on individual chapters of the draft follow. In several instances, we suggest language that could and should be substituted for the existing text. These appear separately at the end of the appropriate chapters. They also are presented in collected form in an Appendix to these comments. II. COKMEN'PS ON SPECIFIC CHAPTERS COMMENTS ON THE INTRODUCTION The Policy Guide begins by asserting that "field studies, controlled experiments and mathematical models have shown that environmental tobacco smoke (ETS) is one of the most widespread and harmful indoor air pollutants and is a major contributor to particulate indoor air pollution." (p. 1) [emphasis supplied) As Dr. Witorsch's comments point out, the validity of the terms "most widespread" and "major contributor" is arguable, but the insertion of "harmful" (with the clear implication of "most harmful") is clearly inappropriate, scientifically unjustified, and certainly misleading. How "harmful" ETS may be, as well as its relative potential "harmfulness" compared with other substances in the