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SHOOK,HARDY&BACON REPORT ON RECENT ETS AND IAQ DEVELOPMENTS March 19, 1993 SHB

REPORT ON!RECENT ETS AND IAQ DEVELOPMENTS ISSUE 43. - IN THIS ISSUE - IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS • EPA may release a final Workplace Smoking Policy Guide by mid-1993, p. 1. • EPA Administrator Carol Browner testifies in Congress about the agency's contracting practices, including the contract for the smoking policy guide, p. 1. • Three bills are introduced in Congress on IAQ and OSHA Reform, p. 2. • Summary of hearings held on the Traficant smoking ban bill begins on p. 2. ETS-RELITED LITIGATION1 AGAINST CIGARETTE MANUFACTURERS • Latest activities in Blanchard, Broin, Butler and Schrrltz, p. 5. ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTtIRERS. • ETS exposure claims of flight attendant Carol Coy are under appeal, p. 6. • Connecticut Supreme Court orders school district to bargain on the issue of banning smoking, p. 7. LEGAL ISSUES AND DE1'ELOPMENTS. • ETS Risk Assessment predicted to have limited value in workplace suits, p. 8. • Newsday article talks about Butler and Coy, p. 8. • Richard Daynard says ADA is "most powerful tool for creating smokefree indoor environments," p. 8. MEDIA COVERAGE •"Airing Out the Issue: More Communities, Companies Join the Antismoking Band- wagon," p. 10. • PASS founder Joe LaMacchia is interviewed on NBC Today, p. 10. SCIENTIFIC/TECHNICAL ITEMS • Two upcoming meetings, p. 11. • "Commentary: Environmental Tobacco Smoke and Lung Cancer," p. 11. IN! EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATI\'E• MATTERS • Manufacturers of products causing death face execution in China, p. 12. • Amendments to the Finnish Tobacco Act are released for comment, p. 12. ETS-RELATE•D LITIGATION AGAINST CIGARETTE MANUFACTURERS • TIA v. AFCO opinions, p. 13. ETS/IAQ LITIGATION NOT INVOIVING CIGARETTE M,1NUF.lCTI'JRERS • Latest activity in Stewart v. State of Vrcroria: p. 14. LEGAL ISSUES AND DEVELOI'7,IC-NT: • In the United Kingdom, three law firms discuss workplace smoking policies, p. 14. OTHER DEVELOPMENTS • Finnish Employers' Confederation opposes statutory smoking bans, p. 15. • U.K. National No-Smoking Day activities, p. 16. MEDIA COVEILU',E " " OTHER DEVELOPMENTS The Fear that Faces Every Non-Smoker,' • 16 m ~ p. . (~3 • San Francisco International Airport lifts total smokin ban 9 C!1 • g , p. . ETS Risk citin olis bans smokin Minnea • Discussions throughout this Report that bear this G~T m g, g p Assessment, p. 9. symbol contain information about events and activities related to the EPA Risk Assessment on ETS. rA

- TABLE OF CONTENTS - Issue 43 March 19, 1993 IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) (1] •EPA Officials Expect Policy Guide to be Released in Mid=1993 ............................................ 1 [2] Administrator Browner Testifies in Congress omEPA's Contract Management Practices ......... 1 [3] Inspector General Criticizes the Procurement of the Workplace Smoking Policy Guidc .......... I U.S. CONGRESS [4] Streamlined IAQ$ill Expected to be Introduced ....................................................................._' [5] •House Subcommittee Takes Testimony on Traficant Smoking Ban Bill ............................... 2 U.S. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA) [6] OSHA Reform Legislarion Introduced in House and Senate ...................................................3 [7] Survey Results on Smoking Policy Announced ........................................................................3 STATE AND LOCAL GOVERNMENTS [8] Privacy Legislation .............................................................---.................................... .---........... 4, [9] ETS-Related State and'Local'LegislativeActiviries ...................................................................4' ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [10] Blnrrchard, Depositions on Venue Issue Scheduled .................................................................. ~ [11] Broitr: Briefing Completed on Petition for Certiorari ............................................................... 5 [12] But/rr: Case Remanded to State Court ..................................................................................... 6 [13] Schultz Cases .................................................................................................... ........................ 6 ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS WORKPLACE: WORKERS' COMPENSATION [14) •ht rr CarolAnn Coy(California Workcrs' Compcnsation Appeal Btsard) [15] (filing date unknown) .................................................................................................... .......... C Wisconsin Workers' Compensation Cases (Newly Added to Wcstlaw Database) .....................6 WORKPLACE: DISABILITY DISCRIMINATION [16] Harmer v. Virginia Electric rmd Power Co. (U.S. District Court~ Eastern District Virl;inia. (6led March 10, 1993) ...............................................................................•-•--•--.--....... ....-......' WORKPLACE: COLLECTIVE BARGAINING [17] Locnl1786ofCouncilNo. 1.AFSC)NEn. StatrBonrdofLaliorRr/.itiont, No. 14502 (Connecticut Supreme Court) (decided Februan• 23, 1993) ...............--..---..... ------ WORKPLACE: 1AQ/SICK BUILDING SYNDROME [18] Wright v. McDonAd'r Corp., 1993 U.S. Dist. LEXIS 2635 [19] (U.S. District Court,Eastern District of Pennsylvania) (decidcd March 2. 1993) ..................... ti In re Voith 6'MacTavisli (Pennsylvania) ..................................................................................8 LEGAL ISSUES AND DEVELOPMENTS [20] •Labor Attorneys Question Value of EPA Risk Assessment in Workplace Litigation ............... ti [21] •"Burl Butler is Dying."' G. Kesslcr, Nrtutdiry; March 14, 1993 ...............................................5 [22] •"The Impact of the (ADA) on (ETS) Exposure Following the E• PA Reporr,'" R. Daynard. Tobacco on Triat;• February 25, 1992 ................................................................... ti OTHER DEVELOPMENTS [23] AirporrOpens °Smokers Only" Rooms ........................................................•-•---.................----`) [24] •Minneapolis Airport Bans Smoking ............................................ ........................................... 1) [25] •Lung Association Publishes New Pamphlet on ETS .............................................................. `I [26] •EPA Risk Assessment Factors in School Board Decision on Smoking .................................... `1 [27]~ Restaurant Association No Longer Oppose Regtdations ................. .......................................... 'I [28]! •Restaurant Association Officials Speak Out About Smoking Ban. .........................................`I [29]' •Food Store Chain Adopts Smoking Ban .............................................................................. 10 [30]': Organization Promotes Study of Multiple Chemical Sensitivity ............................................ 1 tl

Contents Continued, Issue 43 MEDIA COVERAGE [31] •"Airing out the Issue: More Communities, Companies Join the Antismoking Bandwagon," L. Matchan, The Boston Globe, February 28, 1993 ........................................... 10: [32] "Nonsmoking, Please," A. Wolf, The Philadtlpbia lnquirer,,February 26, 1993' ..................... 1{) [33] "Interview: Joe LaMacchia and Martha Fineman on Secondhand Smoke,"' NBC's Saturday Todty. March,13. 1993 ................................................................................ 1(1 SCIENTIFIC/TECHNICAL ITEMS UPCOMING MEETINGS [34] "The Risk Assessment Paradigm After Ten Years: Policy and Practice Then, Now, and in the Future," Wright-Patterson Air Force Base, Ohio, April 5-8. 1993' ............... 1 1 [35]' "Indoor Air '93: The Sixth International Conference on Indoor Air Quality and Climate," Helsinki, Finland„July 4-8, 1993 .................................................................... 11, LUNG CANCER [36] •"Commentary: Environmental Tobacco Smoke and Lung Cancer," C.W. Heath, The Lancer 341: 526, 1993 [See Appendix A] ................................................... 1 1 OTHER HEALTH ISSUES [37] "The Effect of Parental ISmoking on Outcome After Treatment for Glue G.ar in Children," A.R. Maw, A.J. Parker, G.N! lance, and M.G. Dilkes, Clitticn! Otolaryngologi, 17: 41 1-414, 1992 [See Appendix A] ................................................. 1 1 SMOKING POLICIES AND RELATED ISSUES [38] "Interaction of Public Policy Advocacy and Research in the Passage of New Zealand's Smokc-free Environments Act 1990." J. Carr-Grcgg. Addiction 88 (Supplement)t 35S-4I5;,1993 [See Appendix A] ............................................... 12 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS AUSTRALIA [39] New South Wales MP Introduces Bill to Prohibit Smoking .................................................. 12 [40] ACT Government's Agenda Includes Smoking Bans ............................................................. 12 CHINA [41] Manufacturers Face Execution for Products Causing Death .................................................. 1 2 FINIAND [42] Draft Bill on Tobacco and'Smoking Released ........................................................................,1' UNITED ARAB EMIRATES [43] Smoking Ban Adopted in Schools .................................... ...................................................... ,1 .1 UNITED KINGDOM [44] MP Vows to Introduce Smoking Ban Lcgislation ..................................................................,1 3 [45] Lincoln City Hall Goes Smoke Free ...................................................................................... 1 .i [46] Smoking Ban To Extend to County Officials in Exeter County Hall ..................................... 1.1 ' ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS AUSTRALIA [47] • Tobacco Institute ofAustrnli.r Ltd.' v. Australiau Fedtr.ttiou of Conrurnsr OrgnnisationsJrtc: (Full Fcderal Court, New South Wales District Registn•, Australia) (decided December 17, 1992, final judgment March, lO~ 1993) ............................. ,1.1 ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS AUSTRALIA [48j Scobell'o, RSL CGib(New South Wales) (filed 1993) .............................................................. 14 [49] Stewart v. State of Victorin„ 1992 No. 99207283 ~ (County Courrof Victoria, Melbourne) i (filed October 1992) ............................................... ,1-i O [50] Department ofOccr.potiotwlHenltla and Snftry v. Burswood Rrsorl (ALut,tXcrurnt) Lu/. ~ (Magistrate's Court, Perth) (filed December 1992) ................................................................ 14 ~ m 0

Contents Continued, Issue 43 LEGAL ISSUES AND DEVELOPMENTS UNITED KINGDOM [51] Solicicors Discuss Workplace Smoking Policies ...................................................................... 14 OTHER DEVELOPMENTS AusrxnLIA [52] Smokers Act to Overturn Clubhouse Smoking Ban ............................................................... 15 [53] Sports Groups Divide Over Smoking Policy .......................................................................... 15 FINLAND [54] Employers' Group Opposes Statutory Smoking Bans ............................................................ 1 5 ITALY [55] CDIT Publishes ETS Brochures ............................................................................................ 15 JAPAN. [561 Air Purification Systems Proliferate in Public Places .............................................................. 16 NETHERLANDS [57] Doctor Claims 200 Die From ETS Exposure Each Year ........................................................ ]6 UNITED KINGDOM [58] National No-Smoking Day Observed ...............................................................-•-.--..........----. 16. [59] Antismoking Activists Target London's Whitehall ................................................................. 16 MEDIA COVERAGE [60] "The Fear that Faces Every Nbn-Smoker." Birnunghnm Eveuing M.,iG February 1993 .......... 16 APPENDIX A .................................................................................................... .................................Article Sumntaric, APPENDIX B .................................................................................................... ................EPA Inspector General 1.etter APPENDIX C .................................................................................................... .......................•-.---. EPA Lctter to Blilc.-

MARCH 19, 1993 t REPORT ON RECENT ETS AND IAQ DEVELOPMENTS IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) [1] •EPA Officials Expect Policy Guide to be Released in Mid-1993 The EPA, which released a draft of its Workplace Smoking Policy Guide in 1990 along with the original draft Risk Assessment on ETS, reportedly expects to issue a final policy guide in mid-1993. Although the policy guide was originally slated for completion in conjunction with the risk assessment, then-EPA Administrator William Reilly reportedly decided to delay work on the policy guide to quell criticism from Congress and the tobacco industry that setting policy was premature prior to completion of research on the alleged health effects of ETS exposure. According to press reports, it is expected that the final policy guide will focus on building managers and employers responsible for instituting a smoking policy and will deliver the central message that ETS should be eliminated or limited in the workplace. A brochure on ETS exposure in the home and other nonoccupational settings has also been completed by the EPA, but is apparently still being reviewed within the agency. EPA Administrator Carol Browner will have to give final approval to the policy guide and brochure, although publication is dependent upon the appointment of the agency's assistant administrator for air and radiation. See BNA Toxics Law Daily, March 11, 1993. [2] Administrator Browner Testifies in Congress on EPA's Contract Management Practices In response to questions about the Inspector General's report on the EPA's Workplace Smoking Policy Guide contracty Administrator Carol Browner, testifying before the Subcommittee of the House Committee on Energy and Commerce, agreed that the manner in which the contract was issued constituted "sloppiness" and "inappro- priate behavior." According to Browner~ "nothing will be done" with respect to the policy guide until the Inspector General's investigation is completed. During her appearance before the subcommittee on March 10, 1993, Browner answered questions that focused upon contract mismanagement at the agenc<< under previous administrations. Representative Tho- mas Bliley, Jr. (R-Va.), who participated at the invita- tion of Chairman John Dingell (D-Mich.), raised specific questions about contracting improprieties with respect to the EPA's policy guide. Browner has reportedly pledged to take aggressive action to overhaul agency contracting practices in light of "widespread and deeply embedded" mismana~ement of extramural resources. See BNA National Fnr'iron- rnent Daily, March 12, 1993. [3] Inspector General Criticizes the Procurement of the Workplace Smoking Policy Guide In a letter report dated March 3, 1993, the EPA Inspector General criticizes the way in which the Smoking Policy I'nstitute (SPI) was hired to draft the Workplace Smoking Policy Guide and calls the liirin~ process "tainted." A copy of the letter is attached as ` Appendix B. The Inspector General's criticisms revolved around two basic points. First, SPI should' not have been hired on a noncompetitive basis, the Inspector General says. He notes that EPA approved the noncompetitive bid from SPI based on these assertions: "(7 ) SPI was the most qualified source; (2): that no other firm could do the work without both increasing costs and creating unacceptable delays; and (3) it would not be feasible for another contract or to develop the necessary qualifications without expending most, and perhaps all, of the resources available under this work assignment." Second, although an independent contracting firm was responsible for hiring someone to write the policy

2 guide, an EPA official directly communicated with SPI at least twice before it was selected to do the job, both times mentioning that $30,000 was available to pay for the project, the Inspector General says. He reports that SPI sent its proposal for the project directly to the EPA official, and that the EPA official made the contracting, firm aware of the existence of SPI. According to the Inspector General, these communications were "inap- propriate" and "unauthorized" and gave the appearance that the EPA official, rather than the independent contracting firm, selected SPI. The Inspector Generahs letter report was addressed to Representative Thomas Bliley, Jr. (R-Va.), and was in response to questions posed in a letter Blileywrote to the Inspector General in September, 1992. On March 4, the day after the date of the letter described above, another EPA official sent a separate letter to Representative Bliley, responding to questions he had'raised about technical aspects relating to the EPA Risk Assessment on ETS. A copy of that letter is attached as Appendix C. U.S. CONGR •LSS [4] Streamlined IAQ Bill Expected to be Introduced Representative Joseph Kennedy II (D-Mass.) reportedly plans to reintroduce a bill on IAQsometime in March that will drop language from earlier proposals that would have mandated an OSHA IAQ standard. According to press reports, Kennedy's bill is expected to mirror legisla- tion introduced in the Senate by Senator George Mitchell (D-Maine) in 1991. Mitchell's bill, a research-oriented measure, was approved by the Senate but never reached the House floor. Mitchellis also reportedly expected to reintroduce an IAQ measure in the next few months. Kennedy's latest proposal apparently will not include the provisions that blocked his bill in earlier sessions of Congress. Reportedly missing from the measure are provisions mandating produce emission labeling and requiring an OSHA ventilation-based standard. Insiders at the EPA believe the agency would support legislation focusing on research, but neither the EPA or OSHA has officially endorsed the latest House or Senate proposals. According to a House staffer, Representative John Dingell (D-Mich.), Chairman of the House Energy ETS/IAQ REPOR"I', ISSUIi 43 and Commerce Committee, is waiting for direction from the new administration and EPA Administrator Carol'l Browner before a decision will be made on which bill'to move through Congress. See BNA Washingtonlnsidrr, March 10, 1993. [5) •House Subcommittee Takes Testimony on Traficant Smoking Ban Bill On March 11, 1993, Representative James A. Traficant, Jr. (D-Ohio), convened the House Subcommittee on Public Buildings and Grounds to hear testimony on the "Ban on Smoking in Federal Buildings Act" (H.R 881), which was introduced in the House by Traficant in February. Traficant also held'a hearing on the bill~on February 23. See issue 42 ofthis Report, March 5, 1993. A summary of the testimony provided by Congressmen, representatives of federal agencies and interested organica- tions, and scientific experts follows. • Congressional Delegatiorr. Speaking in support of the proposed legislation, Representative Richard Durbin (D-111.) asked whether federal employees are "immune to the dangers of second-hand smoke." He blamed the "tobaeeo lobby" for the federal government's failure to implement smoking bans. Representative Romano Mazzoli (D-Ky.) also testified in support of the mea- sure. However, Representatives Nick Rahall II (D- W.Va.) and Bob Clement (D-'1'cnn.), submitting written statements into the record, said "It is not an appropriate function of the federal government to make lifestyle choices for its workers whenever the government, in its wisdom, considers those choices ill- advised.°" See RollCalZ March 15, 1993. Subcommittee members John Duncan, Jr. (R-Tenn.), Bill Emerson (R-Mo.), and James Clyburn (D-S.C.) also submitted written statements critical of the measure, questioning the accuracy of the EPA Risk Assessment on ETS. • Surgeon General Antonia Nbvello reportedly told the subcommittee panel that 'the simple separation of smokers and nonsmokers within the same airspace may reduce, but does not eliminate, nonsmokers' exposure to tobacco smoke." Speaking in support of H.R. 881, Novello also addressed other tobacco issues. See States News Service, March 11, 1993. • First Lady. Hillary Rodham Clinton, who declined Traficant's invitation to address the subcommittee panel due to scheduling conflicts, submitted a letter

MARCH 19, 1993 dated March 9, 1!993, in which she stated, "I strongly agree that discouraging harmful behavior such as smoking is an essential; part of our overall effort to improve the health of our citizens." Although she did not specifically endorse H.R. 881, Hillary Clinton expressed an interest in working with Traficant in the future on the issue. See States News Service, Mardi 11, 1993. • BOAlA: Executive Vice President Mark Hurwitz testified in support of H.R 881, and stated, "Banning smoking in the workplace would significantly improve the quality of air we breathe. BOMA firmly believes that the most effective course of action to ensure indoor air quality is to prevent contaminants from being introduced into the workplace in the first place." See PR Newswire, Mar& 11, 1993. • EPA: According to the director of EPA's Office of Health and Environmental Assessment, Dr. William Farland, the EPA supports the objecTives of H.R 881: in part because it would provide a model for state and local, governments, but deferred to "interested agencies regard- ing the details of the bill " Farland defended the EPA Risk Assessment on ETS, describing questions about the 90 percent confidence interval as "bogus" and standing by the agency's lung cancer monality estimates. See BNA'Daily Labor Report, March 12, 1993. • OPM Patricia Lattimore, acting Director of the Office of Personnel Management, expressed the agency's strong support for H.RS81, but deferred to the General Services Administration regarding implementation. • The Tobacco Irutinete Dr. Gio Gori of the Health Policy Center called the EPA Risk Assessment on1TS a "scientific scandal" and testified that the EPA's claims about the hazards of ETS exposure constitute "a political condusion shored up by an assumed identity, unwar- ranted assumptions, selective use of data, artful'statistical manipulations and the contrived illusion of mathematical precisions." Dr. Maurice LeVois, principal scientist of Environmental Health Resources, also criticized the risk assessment and testified that it shouldt not be usedas a basis for deciding whether to ban workplace smoking. See States News Service, March 11, 1993. Simon Turner of Healthy Buildings International testified'that HBI's investigation of hundreds of buildings revealed that tobacco smoke was implicated in less than three percent of all~ indoor air quality complaints. A third hearing will be conducted at which a panel of represcntatives from the American Lung Association 3 and the Society of Critical Care Medicine will, be given the opportunity to address the subcommittee. U.S. OCCUPATIONAL SAFE7Y AND HG1LT1'I ADMINISTRATION (OSHA) [6] OSHA Reform Legislation Introduced in House and Senate OSHA reform legislation has been introduced in both chambers of the 103d Congress. The House bill, H.R. 1280, was introduced by Representative William Ford (D-Mich.) on March 10, 1993; the next day, S. 575 was introduced by Massachusetts Senator Edward Kennedy (D). Both bills are in committee. As of this writing, no hearings had been scheduled on the legislation: The bills require that an Occupational Safety and Health standard'address "a significant risk" of material impairment to an employee's health or functional capacity. However, with respect to suspected carcino- gens, the threshold for a finding of significant risk is substantially lower under H.R 1280 than under existing case law. H.R. 1280 sets the threshold for a finding of significant risk at one in a million. The case law interpreting the existing Act generally sets the threshold for significant risk at one in a thousand. Other provisions of the bills would require OSHA to respond to petitions and recommendations for rulemaking within 90 days of receipt and, if OSHA responds that it intends to pursue rulcmaking, a proposed rule would have to be published within 12 months thereafter. All employers would be required to establish and maintain safety and'health programs, and employers who have at least 11 full-time employees would have to establish safety and health committees made up of an equal number of employee and em- ployer representatives. Unlike the OSHA reform legislation considered by the 102d Congress, neither of the pending bills would require OSHA to investigate lAQ or develop an IAQ standard. [7] Survey Results on Smoking Polic}-Artnounced Representative Richard Durbin (D-I11.) announced during a press conference on March 4, 1993, that Congressmen responding to his questionnaire about

4 smoking in the House side of the Capitol in Washing- ton, D.C., were overwhelmingly in favor of adopting a total smoking ban. Of the 434 questionnaires circu- lated, 109 reportedly were returned to Durbin. Sev- enry-six of the House members responding supported a complete smoking ban, while 28 preferred designated areas for smokers. House Speaker Thomas Foley (D- Wash.) and Majority Leader Richard Gephardt (D- Mo.) reportedly endorsed designated smoking zones as being more reasonable than a total smoking ban. Foley stated at his daily news conference that smok- ing could be banned in public areas of the Capitol but that individual lawmakers and committees should decide if they want to ban smoking in their offices and hearing rooms. According to press reports, a problem with smoke- filled restrooms will have to be resolved before a policy can be adopted. Evidently, House employees are retreating to restrooms in those buildings where smoking has already been banned. See The Washington PosA March 5, 1993;. AI', March 4', 1993; Z.7PI, March 4, 1993; BNA Wasbing- ron Insider, March 5, 1993. Durbin is the principal sponsor of PRO-KIDS legislation, currently pending in the House. (H.R. 710). See issue 41 of this Report, February 19, 1993. STATE AND LOCAL GOVERNMENTS [8] Privacy Legislation In Oregon, a bill was introduced on March 5, 1993, that would repeal the law prohibiting an employer from requiring an employee to reftain from using tobacco during nonworking hours. SeeS.B. 599, 67th Legislative Assembly - Reg. Sess. (1993). The Virginia Legislature passed a bill on February 25, 1993, prohibiting employers from discriminating against any person who uses tobacco products outside of employ- ment. The bill also prohibits employers from requiring, as a condition of employment, employees to use tobacco products on the job. In order to become law, the bill must be signed by the Speaker of the House, the President of the Senate and Governor L. Douglas Wilder (D). As of this writing, neither had signed the bill; the deadline for them to affix their signatures is March 29. SeeS:B. 859, Regular Session (1992-93). Bills that would prohibit discrimination against employees who use legal products in a legal manner are E-TSIIAQ REPORT, ISSUE 43 under consideration in three states: Alaska, Idaho and Iowa. Bills that would prohibit discrimination against employees who engage in lawful activities away from the workplace are pending in six states: Florida, Hawaii, Iowa, Kansas, North Dakota and Washington. [9] ETS-Related State and Local Legislative Activities Because of space limitations, the following discussion reflects only a portion of the state and local legislative activity related to ETS. The fax communication sheet at the end of this Report may be used to request information about ETS-related legislation not appearing here. • California On March 3, 1993, the Assembly Labor and Employ- ment Committee voted 7-1 to approve a bill that would prohibit smoking in all California workplaces. The bill has been re-referred to the Committee on Ways and Means. The bill's sponsor, Terry Friedman (D-Brentwood), reportedly predicts a better chance of approval for his biff because of the EPA Risk Assess- ment on ETS. SeeA.B. 13, Regular Session (1993-94). and Los Angeles Times, March 4, 1993. * Connecticut According to a news report, on March 2, 1993, the General Assembly Committee on Labor and Public Employees passed a bill that would expand workplace smoking regulations to employers with 20 or fewer employees. Supporters were reported to say that their position has been strengthened by the EPA Risk Assessment on ETS. The measure now goes to the full House for consideration. See The Harrford Corrrnw: March 3, 1993. *Maryland A bill was introduced on February 26, 1993, that would prohibit smoking in all enclosed public places. It also would prohibit employers from retaliating against employees or potential employees for exercising their rights under the Act. See H.B. 1572, 407th Legislative Session - Reg. Sess. (1993): • Minnesota On March 8, 1993, the House voted 129-1 to pass a bill that would prohibit smoking in family or group day care centers. The bill has been sent to the Senate. Seven similar bills are pending. See Chrcngo Tribune, March 10, 1993, and H.F. 29, 78th Legislative Session - Reg. Sess. (1993).

MARCH~ 19~; 1993 • Pennsylvania On March 16, 1993, state Representative Peter Daley (D) introduced legislation that would prohibit smok- ing in motor vehicles with passengers under age 16. Daley allegedly cited the EPA Risk Assessment on ETS as his reason for proposing the legislation. "'The major focus of that report was the fact that secondary tobacco smoke causes serious health problems for thousands of American children,'" he was quoted to claim. See United Press Internataonal, March 3, 1993 and H. B. 626, 176th General Assembly - Reg. Sess. (1993-94). • Utah The Legislature has sent Governor Mike Leavitt (R) a bill that would require businesses with smoking areas to provide information to employees regarding the alleged health effects of tobacco smoke. Governor Leavitt has until March 23, 1993, to sign the bill. See S.B. 67, 50th Legislature-General Session (1993). • Vermont On February 26, 1993, a bill was introduced that woul& require testing of state schools for the presence of radon, electromagnetic fields and ambient indoor air. SeeS.B. 225, 62d General Assembly - 1st Biennial Sess. (1993-94). ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [ 10] Blancharer< Depositions on Venue Issue Scheduled Pursuant to the court's order permittingplaintiffs to depose defendants' corporate representatives about issues related to the proper venue for this case, the depositions have been scheduled to begin on March 23, 1993, and conclude on April 1. Meanwhile, the court has rescheduled the hearing on defendants' motions to transfer venue to the District Court of Dallas County. That hearing is now sched- uled to take place on May 20 rather than April 30. Plaintiffs have served defendants with a consolidated discovery request consisting of 18 interrogatories, 110 requests for production, and 103 requests for admis- sion. All of the requests are contained in a single document addressed to all defendants. 5 Three of the 14 plaintiffs in this case presently allege injury from exposure to ETS. Raye Blanchard and Tamara Reed, mother and daughter, both claim damages for unspecified "illness and disease" allegedly resulting from exposure to the ETS from cigarettes smoked by Raye's deceased husband, Thomas, andlby Raye herself, who claims she smoked "for about ten years." The third ETS plaintiff, Pamela Kastrin Stephens, claims unspecified "lung and respiratory diseases" allegedly caused by exposure to the ETS from the cigarettes smoked by her deceased father. The named defendants are purported to be the six major U.S. cigarette manufacturers, The Tobacco Institute, the Council for Tobacco Research, and a number of wholesalers and retailers. Blanchard, et all v. R.J. Rrynolds Tobacco Company, et al: (District Court, Galveston County, Texas) (filed July 31, 1992). [11] Broirr. Briefing Completed on Petition for Certiorari The scheduled briefing on defendants' petition for certiorari is now complete; defendants filed their reply brief in the Third District Court of Appeal on March 16, 1993. The certiorari petition seeks review of the trial court's denial of a protective order concerning notices to depose senior executives of six defendants. Although defendants have requested such, the appeals court has not indicated whether it will hear oral argument on the matter. With respect to plaintiffs' appeal of the trial court's order dismissing the class action allegations otf plain- tiffs' complaint, defendants' brief is presently scheduled to be filed by March 29. In ongoing proceedings at the trial court level, the motions to dismiss filed by the Tobacco Manufacturen. Association and The Tobacco Institute have been set for hearing on May 17. Defendants have noticed the depositions of two plaintiffs, Gary Hayes (April"_6) and Valerie Gibson (May 1'7). Pursuant to the court"s most recent order compelling discovery; plaintiffs' current deadline for submitting complete responses to Lorillard's written discovery requests is March 22. At issue in this case are the claims of 30 flight arten- dants allegedly injured by occupational exposure to ETS. In addition, the husband of one of the flight attendants claims loss of consortium. The 30 atten-

6 dants purport to represent a class of approximately 60,000 other attendants. The injuries alleged by the putative class representativess include lung cancer, breast cancer and unspecified respiratory ailments. Plaintiffs further allege that occupa- tional exposure to ETS on board aircraft causes at least 22 diseases and a reasonable fear of contracting such diseases. The defendants are purported to be the six major U.S. cigarette manufacturers (plus related entities), UST, Inc., United States Tobacco Co., Dosal Tobacco Corp., the Council for Tobacco Research, The Tobacco Institute,, and three other trade associations. Broin; et al v. Philip Morris, eta1. (Circuit Court, Dade County, Florida) (filed October 31, 1991). [ 12] Butler. Case Remanded to State Court On March 18, 1993, the federal court remanded this case to the Circuit Court of Hinds County, Mississippi. In this case, Burl Butler alleges that he has lung cancer and other injuries caused by exposure to ETS in the barber shop he has owned and operated for ap- proximately 30 years. His wife, Dean, claims loss of consortium and emotional distress. The defendants are the six major U.S. cigarette manufacturers and four tobacco wholesalers. Butler v. R.J. Reynolds Tobacco Co., et a1 (Circuit Court, First Judicial District, Hinds County, Mississippi) (filed October 21, 1992). [ 13] Schultx Cases Earlier this year, Greg Schultz was released from an Arizona State prison and handed over to the federal marshall. He is now incarcerated in the federal peniten- tiary at Leavenworth, Kansas. Beginning in 1990, Schultz has filed at least seven cases against cigarette manufacturers and others, alleging injury from exposure to ETS in prison. Three of those cases are now pending, and all of them are on appeal from trial court orders disposing of Schulds daims. Only one of the pending cases involves a major U.S. cigarette manufacturer. Schultz u TheAmerrcan Tobacco Company, etal (U.S. Court ofAppeals, 9th Circuit) (trial court dismissal entered February 27, 1992). In November 1992, the appeals court changed the panel assignment for the case, removing it from a panel designated to decide cases without oral argument to an oral argument panel. E•7iS/IA(Z REPORT, ISSUE 43 Nevertheless,,as of this writing„the panel still had not determined whether to hear argument or simply decide the case on the brief submitted. ETS/IAQ LITIGATION NOT INVOL VING CIGARETTE IvIANUFACTURE- RS WORKPi.ACE: WORKERS' COMPENSATION [14] •In re CarolAnn Coy (California Workers' Compensation Appeal Board) (filing date unknown) Later this year, the Workers' Compensation Appeal Board in California will reportedly consider the appeal of a deceased airline flight attendant who claimed that she had contracted lung cancer due to 17 years of exposure to ETS in airline cabins. The husband and son of Carol Ann Coy, who died in 1991, are continu- ing to pursue the claim. Coy reportedly smoked cigarettes for a year or two before she began working for the airlines but is described as a"nonsmoker° in press reports of the case. Coy's attorney apparenth believes that the EPA Risk Assessment om ETS willi boost the prospect for a successful appeal. Coy also joined Broin, the class action lawsuit that was filed in Florida on behalf of airline flight attendants. See Los Angeles Times, March 4, 1993. >Newsday article discusses Coy case, hem 21. [15] Wisconsin Workers"Compensation Cases (Ne..•ly Added to Westlaw Database) Decisions from the Wisconsin Labor and Industn- Commission have recently been added to the Westla-,+• database. As a result, the following four cases appeared in a search covering additions made to the database during the first week of March 1993. The Westlaw database now contains the decisions of the workers' compensation appeal boards of 15 state.: Alaska, Arkansas, Colorado, Connecticut. Maine. Massachusetts, Minnesota, Montana, Npbraska, Ne..• York, Oregon, Pennsylvania, Texas, Washington and Wisconsin. I Fish v. City of Waukrsha Water Utiliq; 1992 WL 447497 (Wisconsin Labor and Industry Review Commission) (decided April 16, 1992). The revie.+, .

MARCH 19, 1993 commission held'that workplace ETS exposure aggra- vated a construction workers' pre-existing chronic obstructive pulmonary disease; claimant was deemed permanently and'totally disabled. I Kufahl v. Wisconsin Bell Inc., Milwaukee, 1990 WL 483427 (Wisconsin Labor and Industry Review Commission) (decided December 11, 1990). Claimant was deemed partially disabled by the review commis- sion; she alleged she developed permanent "sensitiza- tion" to ETS. A summary of this case appeared in issue I of this Report, Apri130, 1991. I Quick v. Newspapen; Inc., 1988 WL 383948 (Wisconsin Labor and Industry Review Commission) (decided September 30, 1988). The review commission ruled that a copy editor didnot sustain an occupational injury caused by ETS exposure. Specifically, the Commission found that the employee did not have asthma or any loss of lung function but merely suffered discomfort when exposed to ETS, hairspray and spray deodorants. I Josephine Krueger v. New York Life Ins., 1987 WL 245852 (Wisconsin Labor and Industry Review Commission) (decided April 13, 1987). Total, tempo- rary disability benefits were awarded to an employee who daimed ETS workplace exposure caused a run- ning nose and eyes, chest pains and coughing. WORKPLACE: DISABILITY DISCR1m1NATION 7 Harmer avers that he filed a charge of disability discrimination with the Equal Employment Opportu- niry Commission (EEOC) on August 11, 1992, and~ received a right-to-sue letter from the EEOC on February 22, 1993, Harmer seeks unspecified wages and benefits awards and an award' of compensatory and punitive damages in the amount of $300,000. He also seeks a dedaration that VEPCO unlawfully discrimi- nated against him and "an injunction against any further such conduct." Attached to the complaint is the affidavit of Harmer's physician who states that Harmer has "a severe reactive airway disease" and that "the presence of tobacco smoke in his work environment is a major contributor to and significant aggravant to this health problem." The affidavit further states that the doctor is aware that VEPCO moved two smokers away from Harmer s work area, provided fans, smokeless ashtrays and air purifiers, limited'smoking to individual smoker's cubides, prohibited smoking in rest rooms, conference rooms and hallways, and created a nonsmoking area in the cafeteria. Harmer's doctor's opinion is that these measures "are insufficient, without more, to enable Mr. Harmer to perform the essential' functions of his position." >Richard Daynard urges potential claimants to sue under ADA, ttem 22. WORKPLACE: COLLECTIVE BARGAINING [17] Local 1186 of Council No. 4, AFSCME v. State [ 16] I Harmer v. Virginia Electrir and Power Co. (U.S. Board ofLabor Relations, No. 14502 (Connecticut District Court, Eastern District Virginia) (filed Supreme Court) (decided February 23, 1993) March 10, 1993) On March 10, 1993, an employee filed an action under the Americans with Disabilities Act (ADA) to force his employer to adopt a smoke free policy in his place of employment as a reasonable accommodation of his disability. Robert E. Harmer, an employee of Virginia Electric and Power Co. (VEPCO) since 1981, claims he suffers from bronchial asthma "which substantially limits his ability to care for himself, his ability to breathe, his ability to walk and his life expectancy." He futther alleges The Connecticur Supreme Court has determined that the New Britain Board of Education may be required to bargain about "discretionary" aspects of a 1987 smoking ban if "implementation of the smoke-free policy has a substantial secondary impact on employee working conditions." The "discretionary" aspects apparently include prohibitions on~smoking out of doors and when classes are not in session and student activities have ceased. that tobacco smoke is a major contributor to and signifi- The court acknowledged that the implementation of cant aggavator of his disability. According to Harmer's a ban on smoking is a managerial' prerogative and may complaint, VEPCO refused to dedare the building or the not be a mandatory subject of bargaining, but that the floor where Harnter works smoke free, reduced Harmer's board was nevertheless required to bargain over purchasing authoriry as a buyer, and passed over Harmer secondary effects. The Court suggested that the board for a promotion because of his disabiliry. may be required to bargain over its failure to provide a

8 smoker's lounge for those teachers who smoke. The case has been remanded to the State Board of Labor Relations. See BNA Washington Insider, March 8, 1993. WORKPLACE: IAQ/SICK BUILDING SYNDROME [18] Wright v. McDonald's Corp., 1993 U.S. Dist. LEJflS 2635 (U.S. District Court, Eastern District of Pennsylvania) (decided March 2, 1993) The U.S. District Court has denied a defense motion for summary judgment in this case involving a claim for damages due to injuries allegedly suffered by exposure to carbon monoxide. Plaintiff is the operator of a McDonald's restaurant. McDonald's owns and'maintains the building in which the restaurant is located and is, according to the courr,, responsible for latent defects in the property. Plaintiff s neurological injuries allegedly resulted from an accumula- tion offumes caused by the improper venting of a gas water heater in the basement in which the plaintiff kept his business office. The court gave three reasons for turning back McDonald's summary judgment motion,, which was based in part on a contractual exculpatory dause and the statute of limitations: McDonald's could not immunize itself from liability contractually; there were disputed issues of material fact; and the pertinent facts could not be discovered earlier by the plaintiff. [19] In re Voith &MacTavish (Pennsylvania) According to press reports, two female employees of Bryn Mawr College near Philadelphia, Pennsylvania, are suing three firms thatwere renovating buildings on campus. The suit reportedly alleges that the firms were negligent in exposing the employees to toxic chemicals and in failing to remediate the problems after complaints were filed. See Indoor Pollution News, March 5, 1993. LEGAL ISSUES AND DEVELOPMENTS [20] *Labor Attorneys Question Value of EPA Risk Assessment in Workplace litigation According to Ohio labor lawyers, the EPA Risk Assess- ment on ETS will' have limited value to employees who ETSIIAQ REPORT, ISSUE 43 sue their employers for injuries allegedly due to workplace ETS exposure. "'That study technically looked at the home environment,"' said'one such attorney interviewed for an article on the subject. Although some predict that plaintiffs will bring more ETS exposure lawsuits, meeting the burden of proof on causation is viewed as a significant obstacle to success given the level of carcinogens workers are exposed to in places other than the workplace. Ohio's occupational disease statute does not apparently list lung cancer as a recognized condition that can be contracted in the workplace, and proof of actual causation is required thereunder. Nevertheless, many labor attorneys are reportedly advising their clients to restrict workplace smoking and many companies are expected to do so, relying upon the EPA Risk Assessment on ETS as a catalyst. See Business First-Columbus~ January 25, 1993. [21 ]•"Burl Butler is Dying," G. Kessler, Newsday, March 14, 1993 This article discusses the history of tobacco litigation in the United States and indicates that cases involving plaintiffs who claim injury as a result of ETS exposure "could open new avenues of attack on the powerful tobacco companies." The article notes that jurors have been reluctant to hold tobacco companies liable for the injuries of smokers because smokers have been warned since 1965 by cigarette pack labels of the alleged adverse health consequences of smoking. Some legal experts say they believe that ETS lawsuits can overcome such credibility hurdles in that there are no warning labels concerning ETS. Experts,,according to the article, are divided on how well the ETS suits will fare. Critics observe that causation, although potentially strengthened somewhat by the EPA Risk Assessment on ETS, is still a problem and that some jurors may want to blame the intermediary that permitted smoking, such as the airlines in the Broin and Coycases and shop owners, as in the Bntlercase. See Newsday, March 14, 1993. sCoy workers' compensation case is under appeal, Hem 14. [22] •"The Impact of the (ADA) on (ETS) Exposure Following the EPA Report," R. Daynard, Tobacco on Tria4 February 25, 1992 Richard Daynard, declaring an end to the controversy over the alleged health hazards associated with ETS

MARCH 19, 1993 exposure following release of the EPA Risk Assessment on ETS, proposes that individuals who are sensitive to ETS will be able to force workplaces and public places to adopt smoking bans by bringing actions under the Americans with Disabilities Act (ADA): In his Tobacco on Trial publication, Daynard sets forth the various definitions under the ADA which he refers to as "the simplest and most powerful tool for creating smokefree indoor environments." He concludes that "the ADA not only requires that afflicted nonsmokers be accom- modated at work and in public places, it also prohibits retaliation, interference, coercion, or intimidation against anyone who asserts their rights under the act." See Tobacco on TriaZ February 25, 1993. >Harmer ADA case is filed n vrgiNa„ttem 16. OTHER DEVELOPMENTS [23] Airport Opens "Smokers Only" Rooms On March 9, 1993, San Francisco International Airport, which has one of the nation's most restrictive smoking policies, opened two "smokers only" rooms, one in the international terminal'and the other in the north terminal. According to airport authorities, the facility is the first U.S. airport to physically separate smokers from nonsmokers by constructing designated smoking areas. An airport spokesperson stated that it was the airport's intention to provide some accommodation for smokers while protecting others from ETS exposure. See The San Francxsco Chronicle, March 10, 1993. [24] *Minneapolis Airport Bans Smoking According to a news report, smoking will be banned in the public areas of the Minneapolis/St. Paul Interna- tional Airport beginning April 19, 1993. An airport official was quoted as saying, "`We've had limited success with restricted areas for smokers over the past 10 or 15 years. However, following the EPA announce- ment late last year [sic] 1 regarding the health effects of second-hand smoke on thousands of persons annually, we decided that it is time for the public use areas of our terminal facilities to be entirely smoke-free.'" See PR Newswirr, March 3, 1993. 9 [25] •Lung Association Publishes New Pamphlet on ETS The American Lung Association has reportedly pub- lished a pamphlet entitled "Reducing the Health Risks of Secondhand Smoke." A spokesperson fbr the organization referenced the EPA Risk Assessment on ETS and said the pamphlet is the first of its kind to explain how nonsmok- ers can protect themselves from ETS exposure at home, at work and in public places. The pamphlet is being made available free of charge to the public and can be obtained bycxlling a toll-free number, 1-800-300-LUNG. Str Business Win, March 4, 1993. [26] *EPA Risk Assessment Factors in School Board Decision on Smoking Citing the EPA Risk Assessment on ETS, a Dallas area school board president recently called for the district to prohibit the use of tobacco anywhere on school grounds. Teachers' associations are reportedly critical of the plan and favor retention of designated smoking areas in school and administrative buildings. Nine of the district's 54 schools are already smoke-free. According to a press report, a proposed policy will be drafted in the next few weeks and the board is expected to vote on it in March. See The Dallas Morning News, February 25, 1993. [27] Restaurant Association No Longer Oppose Regulations The Restaurant Association of Maryland' is reported to no longer oppose statewide legislation regulating smoking as long as restrictions apply to "all places of assembly" - not just restaurants. The association reportedly changed its position for three reasons: increasing reports about the alleged health effects of ETS exposure; increasing customer requests for smoke- free dining areas; and proposals for local bans that could create statewide inconsistencies. See Indoor Pollution News, March 5, 1993. [28] •Restaurant Association Officials Speak Out About Smoking Bans According to some restaurant industry representa- tives, statutory smoking bans might not arise as quickly as antismoking activists have predicted since release of the EPA Risk Assessment on ETS. Restaurant Associa-

10. tion officials in New York and California have reportedly observed that tax revenues and profitable smoking cessation services would be threatened if nationwide or statewide bans were put into effect. Enforcement is also seen as a problem; police and fire departments say they do not want to be responsible for enforcement, and restau- rant owners do not want to be penalized if patrons do not comply with smoking regulations. See Nation's Restaurant News Newspaper, February 15, 1993. [29] *Food Store Chain Adopts Smoking Ban In response to the EPA Risk Assessment on ETS, a grocery store chain near Minneapolis has reportedly adopted a smoke-free policy in its 27 stores and corporate offices. Rainbow Foods' corporation presi- dent made the decision "as a goodwill move to protect all Rainbow employees and customers from the dangers of second-hand smoke." See Star Tribune, March 12; 1993. ['30] Organization Promotes Study of Multiple Chemical Sensitivity An attorney who has allegedly developed multiple chemical sensitivity has reportedly launched the Founda- tion for Environmental Health Research. This non-profit organization will promote the study of chemical-induced illnesses and public awareness of the problem. The foundation is apparently seeking grants from corporate benefactors to sponsor medical'research. AttorneyAlan Bell does not know what triggered his sensitivity but suspects exposure to molds and bacteria and the chemicals emitted by carpet, paint, pesticides and furniture played a key role. Bell's brother, Robert, who owns a pharmaceutical company specializing in sun and skin care products, has provided $1 million in seed money to attract corporate grants. A foundation office has reportedly been opened in Tucson, Arizona, and a five member advisory board has been appointed. See The Toronto Star, March 5, 1993. MEDIA COVERAGE VAiring out the Issue: More Communities, Companies Join the Antismoking Bandwagon," L Matchan, The Boston Globti February 28, 1993 This article highlights smoking restrictions that are affecting communities throughout Massachusetts, with ETS/lAQ REPORT, ISSUE 43 the author observing that "antismoking forces are overwhelming their adversaries in the battle for control of public space." Communities such as Somerville, Needham and Lexington have apparently placed restrictions on smoking in workplaces and public places. And the author reports that New England Telephone, Fleet Bank, Arthur D. Little Co. and Houghton Mifflin offices are now smoke-free. Antismoking activists say they believe the EPA Risk Assessment on ETS has accelerated legislative and workplace activity with respect to the adoption of smoking restrictions in recent weeks. [32] "Nonsmoking, Please," A. Wolf, The Philadel- pbia Inquirer, February 26, 1993 The writer of the two articles on smoking comprising this weekend edition special discusses the growing trend in the Philadelphia area for eating and entertain- ment establishments to offer smoke-free environments. Although some restaurants report an increase in business after adopting smoking bans, others, such as Macaroni's, found that banning smoking caused a dramatic decrease in business. Evidently, all' 12 of the casinos in Atlantic City offer smoke-free gaming areas as well as advanced air filtration systems. TropWorld Casino & Entertain- ment Resort is, according to the writer, the only Atlantic City casino to ban smoking in its showroom. Gaming hall workers have reportedly launched a group called "Casino Employees Against Second Hand Smoke" and daim that the smoke blown into their faces by gamblers is an occupational hazard. [33] "Interview: Joe LaMacchia and Martha Fineman on Secondhand Smoke," NBC's Saturday Today, March 13, 1993 Joe LaMacchia, who formed Parents Against Second- hand Smoke (PASS) after obtaining a custody order requiring his ex-wife to refrain from smoking in the presence of their son, was interviewed during a recent segment of the NBC television broadcast of Snrurrlal• Today. He said there has been a great deal of interest in his organization and reiterated the stand'of former Surgeon General C. Everett Koop that smoking is a form of child abuse. Go a O Cl? CJ1 Ca ~

MARCHi 19, 1993 Appearing on the program with IaMacchia was a Columbia Law School'professor who questioned the wisdom of placing smoking issues into the realm of child custody law. According to Professor Martha Fineman, it will be difficult for courts to ignore the claims of a parent who is a vegetarian and who is involved in a divorce action that his or her children should not eat red meat now that the use of tobacco products has been placed at issue. She also speculated that the issue may not remain limited to cases involving divorce. Smoking, she stated "'might be harmful, but it is legal conduct, and to argue it is in and of itself the determining factor in abusive conduct seems to me to be problematic."' 11 building operation, material sciences, air chemistry, and regulatory issues. ETS will be discussed in at least five presentations. Douglas Dockery will present "Health Effects of Combustion Products." Michael Lebowitz will discuss "Biological Indicators and Tests in Indoor Air Re- search:" Brian Leaderer will discuss "Semi-volatile Combustion Products and ETS." James Woods will speak on "Building Diagnostics and Evaluation of Remedial Measures." And Ken Sexton will address "Policies and Regulations." LUNG CANCER SCIENTIFIC/TECHNICAL ITEMS UPCOMING MEETINGS [34] "The Risk Assessment Paradigm After Ten Years: Policy and Practice Then, Now, and in the Future," Wright-Patterson Air Force Base, Ohio, April 5-8, 1993 This conference will mark the tenth anniversary of the National Academy of Sciences risk assessment paradigm. The goals of the conference are to: (i) acquaint individuals with the basics of the risk assessment process as originally developed by the Academy; (ii) to highlight current issues, emphasizing strengths and weaknesses of the current paradigm; and (iii) to discuss current research related to improving the risk assessment process. The sponsors of the conference indude the EPA, the National Research Council Committee on Toxicology and divisions of other government agencies. [35]! "Indoor Air '93: The Sixth International Con- ference on Indoor Air Quality and Climate," Helsinki, Finland, July 4-8, 1993 According to informational materials, this conference will consist of plenary sessions, scientific and technical sessions with oral and poster presentations, and work- shops. Topics to be discussed indude public health, biosciences, occupational health, environmental engineer- ing, building design and technology, energy consumption, [36] *"Commentarys Environmental Tobacco Smoke and Lung Cancer," C.W. Heath, The Lancet 341: 526, 1993 [See Appendix A] This brief article focuses on the recently-released EPA Risk Assessment on ETS. The author contrasts it with the other reviews on the topic that appeared in 1986, saying that EPA "strongly reaffirmed" their conclu- sions, and provided a "firm regulatory basis for in- creased societal action to eliminate ETS." OTHER HEALTH ISSUES [37] "The Effect of Parental Smoking on Outcome After Treatment for Glue Ear in Children," A.R. Maw, A.]. Parker, G.N. Lance, and M.G. Dilkes, Clinical Otolaryngology 17: 411-414, 1992 [See Appendix A] In this study, 201 children with chronic otitis media of both ears were reexamined one year after surgery had been performed on one ear. The authors claim that the condition was less likely to have resolved in those children whose parents smoked.

12 SMOKING POLICIES AND RELATED ISSUES [38J "Interaction of Public Policy Advocacy and Research in the Passage of New Zealand's Smoke-free Environments Act 1990," J. Carr- Gregg, Addiction 88 (Supplement): 35S-41S, 1993 [See Appendix A] The author of this article, a public policy advocate, describes the events leading up to the passage of an act requiring smoke-free workplaces, and banning tobacco advertising in New Zealand. He invokes claims about health effects related to ETS exposure in his discussion. IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS AUSTRALIA [39] New South Wales MP Introduces Bill to Prohibit Smoking On March 4, 1993, Independent MP Dr. Peter Macdonald reportedly introduced a bill in the New South Wales Legislative Assembly that would prohibit smoking in any enclosed workplace. The measure would amend the Occupational Health and Safety Act 1983 and would penalize employers who fail to take steps to prevent smoking in the workplace. [40] ACT Government's Agenda Indudes Smoking Bans The Australian Capital Territory (ACT) Labor Government is reponedlyconsidering legislation that would ban smoking in public places such as hotel lobbies, pubs and restaurants. The proposal, which may be introduced in the first half of the year, has evidently caused concern among restaurateurs and pub and hotel owners who are worried about loss of business. According to Richard Mulcahy, executive director of the Australian Hotels Association, no one in the industry was consulted by the Labor Party before ETS/IAQ REPORT, ISSUE 43 the Government announced its proposal. Mulcahy further criticized the Government for appearing to be using the hospitality industry as an instrument for social reform. "`We have no doubt at all that the effect will be immediate and dramatic on our businesses and suppliers of those businesses,"' Mulcahy said. See The Canberra Times, February 18 & 19, 1993; TheAustra- lian National Daily, February 19, 1993. CHINA [41] Manufacturers Face Execution for Products Causing Death The legislature has reportedly passed a consumer protection law that permits the execution of manufac- turers of products that cause deaths. Although press reports do not link the new law to tobacco or tobacco products, discussion of the matter includes reference to faulty water heaters that have electrocuted bathers, cosmetics that: cause burns and ferrilizers that ruin crops. The new law apparently links the severity of the penalties to the damage caused by the product and the amount of profit made by the manufacturer. The la%.•, which takes effect on September 1, 1993, provides for the death penalty when a product causes death because it is poorly made or claims to be something it is not. See TheAsian Wall StreetJorrnra!' March 1, 1993. FINLAND [42] Draft Bill on Tobacco and Smoking Released A draft bill which would amend the Finnish Tobacco Act has been released for comment to some 40 inter- ested parties. Comments on the measure will be due on or before April 2, 1993. After the comments are reviewed a second draft will be submitted to Parlia- ment. The proposed amendments include provisions which would significantly restrict smoking in work- places and public places. Chapter 5 of the draft act is entitled "Protection of Population from the Health Hazards of Smoking." According to Section 12, smoking,would be prohibited in: (i) indoor areas of day care homes and educational facilities as well as these institutions' outdoor areas primarily intended for persons under the age of 16; (ii) virtually affindoor areas intended for the public and

MARCH 19;,1993 customers; (iii) indoor areas in which public events have been organized and to which the public has unrestricted access; (iv) the indoor areas of a means of public transport; and (v) the general and common indoor areas of work communities and in workrooms in which two or more persons work. Section 13 of the proposal permits smoking in designated areas, but tobacco smoke cannot spread to areas in which smoking is prohibited. In addition, smoking areas may not be designated in any indoor area used primarily by persons under the age of 16. The smoking,restrictions would not be applicable to the customer areas of restaurants, other catering establish- ments, hotels, and other accommodation facilities. The owners and proprietors of such facilities could impose restrictions and/or bans at their discretion. In addition, a home-operated business used solely by members of the same family and others living in the household would be exempt from the smoking restrictions. Fines would be imposed upon smokers who continue to smoke in restricted areas aker receiving a warning,, and fines would be imposed' upon building owners, managers or event organizers for failing to enforce smoking restrictions. UNITED ARAB EI\91'RATES [43] Smoking Ban Adopted in Schools The Education Ministry has reportedly imposed a nationwide smoking ban in schools. In a circular issued February 18, 1993, the Ministry Under-Secretary informed the directors of education zones and school principals that teachers and administrative staff would no longer be permitted to smoke in school. See Moneyclips, February 19, 1993. UNITED KINGDOM [44] MP Vows to Introduce Smoking Ban Legislation MP Ian McCartney is reportedly putting the finishing touches on a draft bill which would ban smoking in all public places and workplaces. According to McCartney, ETS exposure is more damaging than exposure to asbestos. He added that, °'In the Wigan area, up to 50 children a day need treatment because of 13 the effects of passive smoking."' MeCartney evidently hopes to have his proposal discussed in Parliament this summer. See Wigan EvenrngPost, February 1993. [45] Lincoln City Hall Goes Smoke Free Following complaints by staff members to their union Nalgo, the same union that represented Veronica Bland, about the alleged health risks of ETS exposure and a survey of workers about the adoption of a smoking ban, the Lincoln City Council has reportedly decided to make City Hall smoke free beginning April 1, 1993. The City says it surveyed building employees last Fall, and 74 percent were in favor of a ban. Anyone entering the building will apparently be subject to the ban, including officers, councilors„staff and visitors. The City also planned to house a display of smoking for National No-Smoking Day on March 10, 1993. See Lincolruhire Daily Echo, February 15, 1993. [46]' Smoking Ban To Extend to County Officials in Exeter County Hall Council leaders in Exeter have reportedly taken an all- party decision to ban smoking in committee rooms in County Hall. The move was apparently a response to union complaints of hypocrisy when workers were banned from smoking while politicians continued to "puff away" in the building. A final decision on the issue will'reporr- edly be taken by the full council within the next month. See Fxeter Erpress 6- Eelio, February 1993. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS AUSTRALIA [47] • Tobacco Institute ofAustralia Ltd. v. Austra- lian Federation of Consumer Orga»isations Inc. (Full Federal Court, New South Wales District Registry, Australia) (decided December 17, 1992, final judgment March 10, 1993) In three separate opinions totalling 62 pages, the Full Federal Court rendered its final judgment on March 10, 1993, and in so doing: (i) declared that paragraph 3 of the advertisement published by TIA in July. 1'986

14 was misleading and deceptive; (ii) denied AFCO's request for injunctive relief; (iii) refused AFCO leave to introduce "fresh evidence," i.e., the U!S. EPA Risk Assessment on ETS, a TIA brochure on smoking in the workplace and statements made by TIA's executive director; (iv) refused TIA leave to argue the constitu- tional free speech issue; and (v) awarded AFCO three- fourths of its trial costs and one-half of its appeal costs on a party/party and not an indemnity basis. This award is considerably less that the award made by Judge Morling, as parry/parry costs generally amount to one-third to two-thirds the amount actually paid by the litigant. TIA will have 21 days in which to file an appeall to the High Court of Australia. ETS/IAQ LITIGATION! NOT INVOLVING CIGARETTE MANUFACTURERS AUSTRALIA [48] Scobell v. RSL Club (New South Wales) (filed 1993) A press article reports that a NSW registered dub employee has filed a claim against her employer alleging injury caused by ETS exposure. Margaret Scobell, 55, says she worked at the RSL dub for 10 years, but left her job in January 1993 because ETS exposure allegedly caused her lungs to "hemorrhage. " Described as an "infrequent smoker," she says she will have to have a section of her lung removed. She is reportedly making a claim for loss of income and medical expenses. A clubs association spokesperson was reported to claim this is the first case involving a NSW registered club. He said he understands Scobell has sever bronchi- tis. The club's manager said the case is being assessed by the club's insurance company. See The Daily Telegraph Mirror (Sydney), March 17, 1993. [49] Stewart v. State of Victoria, 1992 No. 99207283 (County Court of Victoria, Melbourne) (filed October 1992) The State of Victoria has filed its defence in a case involving William Roy Stewart's claim that ETS ETS/IAQ REPORT, ISSUE 43 exposure in the workplace caused him to suffer impaired! respiratory function, emphysema and asthma. See issue 34 of this Report, November 6, 1992. Stewart, a 60-year-old County Court official, alleged negligence for failure to properly train court workers about the alleged risks of ETS exposure and negligence in failing to provide court employees with a safe place to work. In its defence, the State of Victoria: (i) denies Stewart was exposed to large quantities of ETS and denies the effect of ETS exposure; (ii) denies that Stewart was under the care, control and supervision of servants and agents of the defendant; and (iii) denies that Stewart has suffered any injury. The State of Victoria further "does not admit" negligence and breach of statuton• duty. A claim of contributory negligence is pleaded, i.e., Stewart was negligent in: (i) "Failing to advise the defendant that he was exposed to excessive tobacco smoke"; (ii) "Failing to advise the defendant that he was suffering from the effects of the inhalation of tobacco smoke and/or excessive tobacco smoke"; and (iii) "Failing to advise the defendant that he was suffering from health problems associated with expo- sure to excessive tobacco smoke." [50] Department of Occupational Health and Safety v. Burswood Resort (Manage7nent) Ltd (Magistrate's Court, Perth) (filed December 1992) Defendant Burswood entered a plea of not guiln• during a hearing conducted on February 24, 1993. A trial date of August 2, 1993, has been set in the case. The case involves charges brought by the Western Australia Department of Occupational Health and Safety against the owners of a casino for failure to protect employees from ETS exposure. See issue 38 of this Report, January 7, 1993. LEGAL ISSUES AND DEVELOPI\-i1:Nl'ti UNITED KINGDOM [51]' Solicitors Discuss Workplace Smoking Policies A recent press article reports that the Trowbridge law firm Bishop Longbotham and Bagnall predicts the Veronica Bland case wiffcause employers to introduce smoking policies in the workplace and will "encourage

MARCH 19; 11993 other people who have suffered as a result of passive smoking at work to take action against their employ- ers." Many West companies, including Future Publish- ing and Avon Rubber, are apparently among the estimated three out of every four companies nation- wide which have no-smoking policies. The most common policy is to restrict smoking to designated areas in the workplace. See Bath er West Evening Chronicle, February 16, 1993. In a related story, John McMullen of the Leeds-based commercial law firm Simpson Curtis has reportedly warned that employers who rush to impose workplace smoking bans could face claims by smokers that the right to smoke on the job has been incorporated into their contracn through "custom and practice." McMullen advises employers to consult their employ- ees first and give advance warning about the disciplin- ary consequences of noncompliance. See Yorkshire Post, Leeds, February 20, 1993. Meanwhile, solicitors Nabarro Nathanson have reportedly warned employers that the Workplace (Health Safety and Welfare) Regulations 1992, require that all new workplaces separate smokers from non- smokers in rest areas. Existing workplaces will evidently have to comply by 1996. In addition, the regulations require all employers to prepare risk assessments. According to a partner at the law firm, employers who do not include the alleged effects of smoking in these assessments could face criminal enforcement proceed- ings. Serious breaches of the law can apparently be penalized by fines or shut downs. See AressAssocration Newsfrle, March 10, 1993. OTHER DEVELOPMENTS AUSTRALIA [52] Smokers Act to Overturn Clubhouse Smoking Ban Smokers at the Riverside Golf Club have reportedly replaced half of the 14-member committee that voted last year to ban smoking in the clubhouse. A postal vote has apparently been scheduled for March at which 115 time members will be asked if smoking should be allowed'in a specially designated area. According to press reports, the smoking issue has been contentious at clubs throughout the country. The smoking ban at Riverside has caused a significant slump in the bar trade, but club management is evidently being warned that personal liability could result from a successful common claim by someone alleging injury due to ETS exposure. See Sunday hlai4 February 14, 1993. [53] Sports Groups Divide Over Smoking Policy The leading sports sponsor, Foundation South Australia (FSA), has reportedly demanded that smoke- free zones be established at all'indoor sporting venues and that smoke-free areas be provided for half the spectator areas outdoors beginning in July 1993. According to a random survey of FSA-sponsored groups, all would comply to avoid losing their funding.' but some are critical of the newpolicy: SeeAdelaidP Advertiser, March 2, 1993. FINLAND [54] Employers' Group Opposes Statutory Smoking Bans The Finnish Employers' Confederation STK reportedh• opposes a statutory ban on smoking in the workplace. The group evidently prefers legislation which would oblige employers and employees to agree among themselves where smoking would be permitted and doubts the claim that nonsmokers are more productive than smokers. See Helringen SanomaA February 20, 1993: ITALY [55] CDIT Publishes ETS Brochures This year the Centro di Documenrazione e Informazione sul Tabacco (CDIT) in Milan has published three short booklets on ETS issues. "Smoking in the Workplace" will be distributed to journalists and the members of a national association of personnel managers. "ETS: A Summary of the Scientific Literature" and "ETS: Indoor Air Quality and the Need for Adequate Ventila- tion° will be distributed to journalists and to the readers of a tobacco publieation, Frirnd~ of tGP Pipe.

16 JAPAN [56] Air Purification Systems Proliferate in Public Places According to press reports, an increasing number of air purification devices are being installed in public places nationwide in order to accommodate the interests of both~ smokers and nonsmokers. Ceiling and table units are available from such manufacturers as Japan Air Curtain Corp. and have apparently been hailed for their effectiveness in preventing ETS from drifting out of designated smoking areas. Although air purification systems have been installed in train stations, municipal offices and at public places such as the Tokyo Dome and the Oi race track, private corporations have apparently not shown an interest in purchasing such systems for the workplace. Japan Air Curtain's president attributes this lack of interest to the recession and not to an insensitivity to nonsmokers' rights. See Nikkei Weekly, February 22, 1993. NETH ER1AN DS [57] Doctor Claims 200 Die From ETS Exposure Each Year The General Director of the Dutch Cancer Associa- tion, Dr. K. van de Poll, speaking at the closing session of the European Year of Safety and Health at the Workplace in Amsterdam, reportedly claimed that ETS exposure causes 200 deaths among nonsmokers each year in the Netherlands. Apparently, the doctor extrapolated the figure from a U.S. study on ETS. He further criticized the minister for social and labor affairs for failing to cover smoking in a new draft decree on workplaces. See Truow, February 5, 1993. UNITED KINGDOM [58] National No-Smoking Day Observed Among activities reported in the press on National No-Smoking Day, March 10, 1993, was the tabling by Conservative MPs of a motion deploring the "sweeping nanny state persecution of smoking minorities." Some 32 peers and MPs reportedly held a special lunch in a London hotel during which they lit pipes in defiance of the Day. According to a Gallup survey, results of which ETS/IAQ REPORT, ISSUE 43 were released on No-Smoking Day, only 15% of respondents reported giving up smoking to protect the health: of other family members. See Press Association Newsfile, March 10, 1993. [59] Antismoking Activists Target London's Whitehall Antismoking activists have reportedly conducted a referendum among Whitehall office workers regarding a workplace smoking ban. According to press repons,, the activists may not have much success given Home Secretary Kenneth Clarke's penchant for medium-sized cigars. See Press Association N'ewsfrle, March 8, 1993. ME•DlA COVERAGE [60] "The Fear that Faces Every Non-Smoker," Birmingham Evening Mar4 February 1993 Using a test for levels of cotinine in urine, the Evening Ma4 in a special report on ETS, claims it found that even nonsmokers who work in smoke free environ- ments have trace levels of cotinine in their bodies. The test, which was developed~ by the Wolfson Applied Technology Laboratory and works much like a home pregnancy kit, was apparently administered to three workers: a nonsmoker, a former smoker who is exposed to ETS in the workplace and a smoker who is a pub landlady. The former smoker, who gave up smoking following a near fatal heart attack, was reportedh• surprised to learn that his cotinine level allegedlv showed the effects of smoking three cigarettes a da.: The article concludes by soliciting the views of readers about "passive smoking."

MARCH 19, 1993 APPENDIX A The numbers assigned to the following article summaries correspond with the numbers assigned to the synopses of the articles in the text of this Report. SCIENTIFIC/TECHNICAL ITEMS LUNG CANCER [36] "Commentary: Environmental Tobacco Smoke and Lung Cancer," C.W. Heath, The Lancet 341: 526, 1993 "Since 1986, exposure to environmental tobacco smoke (ETS) (passive smoking) has been widely regarded in scientific cirdes as a cause of human lung cancer. In that year, the US National Research Coun- cil, the Surgeon General of the US Public Health Service, and the International Agency for Research on Cancer issued expert reviews of the topic. Each con- cluded that lung cancer resulted from ETS exposure." "The same conclusions have now been strongly reaffirmed in an updated review issued in December, 1992, by the US Environmental Protection Agency (EPA): Signif cantly, however, what the three earlier reports lacked, the EPA pronouncement now provides - a firm regulatory basis for increased societal actiom to eliminate ETS from public buildings and places of business. Although the EPA itself has no direct regula- tory authority over indoor air conditions, its action classifying ETS as a class A carcinogen (i.e., a "known" human carcinogen)'. is widely expected to spur the US Occupational Safety and Health Administration to review and revise its rules governing smoking in workplaces. The EPA report is also expected to encour- age businesses and governments to move voluntarily toward community-wide smoke-free conditions, in view of the greater vulnerability to litigation arising from ETS exposures." "The evidence that ETS causes lung cancer rests solidly on a combination of epidemiological and toxicological data, all to be viewed against a back- ground of longstanding knowledge about cancer occurrence in active cigarette smokers. The EPA report reviews this total fabric of evidence in considerable detail but gives special emphasis to the epidemiological findings ... Thirty epidemiological studies from eight countries are reviewed...All thirty examined lung A-1 cancer risk in non-smoking spouses of smokers. Although some also attempted to measure risk in terms of ETS exposure in children and in workers, judging such exposure is less certain than between spouses andl hence findings are more difficult to interpret." "The EPA report weights these various kinds of evidence in relation to the recommendations of Bradford Hill regarding the nature of information upon which causal associations can be identified...In each instance, the collective findings here strongly support a cause-effect association. How quickly and completely will the report's findings be translated in effective community action?" OTHER HEALTH ISSUES [37] "The Effect of Parental Smoking on Outcome After Treatment for Glue Ear in Children," A.R. Maw, A.]. Parker, G.N. Lance, and M.G. Dilkes, Clinical Otolaryngology 17: 411-414, 1992 "The present study examines prospectively the effects of maternal and paternal smoking habits on the outcome of treatment for glue ear in childremaged' between 2 and 9 years. The surgical aspects of this study have previously been reported and we now present the effects of passive smoking in children with glue ear on outcome of treatment 1 year follos•in£ adenoidectomy and adenotonsillectomy. A similar group in whom no pharyngeal surgen, was performed is also included, reflecting the effect of smoke exposure on the untreated condition." "The study population consisted of 201 children aged between 25 and 103 months with a mean age of 63 ~ months. There were 131 boys and 70 girls. Surgery was performed on a randomly allocated basis in 3 groups of which 81 had adenoidectomy alone, 47 adenotonsil- lectomy and 73 did not have surgery performed, either to tonsils or adenoids. (After 1:50 cases had been anah:kd and reported, adenotonsillectomy was discontinued for ethical reasons and adenomectomy was performed ar random.) ...Subsequent follow-up was made at 1.•e:tr (±3 months) later and the same observer examinedd the unoperated ear...to assess clearance or persistence of the effusion...A self-administered questionnaire was completed preoperatively by one or both parents with respect to their smoking habits: The occupation of the

A-2 father was noted and classified into 6 social' classes... Parents were classified into non-smokers, mild smokers (1-9 cigarettes per day); moderate smokers (10-19 cigarettes per day) and heavy smokers (20 or more cigarettes per day)." "There was significantly reduced otoscopic clearance of effusion in an unoperated ear at 1 year in those children whose parents smoked compared with those who did not. This was evident in all cases where both parents or mother smoked, irrespective of whether surgery to the tonsils or adenoids was performed. Clearance was significantly enhanced in those who underwent adenoidectomy or adenotonsillectomy compared with those who did not receive pharyngeal surgery. The socioeconomic group of the father was, unexpectedly; found not to have a significant relation- ship to outcome by the analysis in terms of any of the smoking or other variables." "This study for the first time an adverse effect on the outcome of surgical treatment for children with glue ear in relation to parental smoking habits...These children~ had very well established bilateral disease. On average there was a previous history of subjective hearing loss for at least 18 months prior to inclusion in the study...Despite the severiry of the disease in these children we have shown that resolution of glue earr after treatment is reduced if the child's mother smokes and there is also a relationship between outcome and the number of cigarettes smoked by the mother. Further- more, there is a more significant adverse effect on outcome if both parents smoke and again this relates to the number of cigarettes smoked by both parents...The study provides further support to professional and governmental advice that parental smoking is harmful to children. It suggests that the beneficial effect of surgery for glue ear by adenoidectomy will be reduced if the child'returns to a household where there is exposure to tobacco smoke." SMOKING POLICIES AND RELATED ISSUES [38] "Interaction of Public Policy Advocacy and Research in the Passage of New Zealand's Smoke- free Environments Act 1990," J. Carr-Gregg, Addiction 88 (Supplement): 35S-41S, 1993 "On 28th August 1990; the New Zealand' Parliament enacted the Smoke-Free Environments Act, arguably ETS/IAQ REPORT, ISSUE 43 one of the toughest pieces of anti-tobacco legislation ever enacted in the world. The law required all employ- ers to draw up, in consultation with employees a policy to protect the rights of workers to a smoke-free envi- ronment. Additionally, all direct advertising of tobacco products including point of sale advertising was banned and tobacco sponsorship of sports, arts and cultural events was phased out." "In February 1989, the New Zealand Cancer Society and the National Heart Foundation formed the Coalition Against Tobacco Advertising and Promotion (CATAP). This organization employed the author as co-ordinator, and formed what became one of the largest coalition of health and human service groups m the history of New Zealand'public health." "The cornerstone of the campaign~was the interna- tional scientific evidence on the health-damaging effects of tobacco." "The U.S. Surgeon General's Report in 1986 on passive smoking further stimulated and mobilized the concern of non-smokers. This was critical as smoking officially became everyone's business. The international data were used to extrapolate the number of deaths in New Zealand attributable to both smoking and passive smoking:" "In particular, the estimate of 4073 New Zealand deaths per annum attributable to active smoking and the 273 deaths per annum attributable to passive smoking, both based on overseas data, provided a simple means of indicating the extent of the problems caused by tobacco products in New Zealand.... The use of such creative epidemiology by advocates is useful in focusing public debate." "Scientific justification alone is rarely the only route by which most policies come into being, in general some combination of science and public advocacyy come together to produce social policies, with the role of science varying from policy to policy. In this instance, public understanding and public concern was the key element which converted the scientific findings into policy. This understanding was obtained hy persistent intense pressure by informed groups whoo really wanted to see things change."

~ i~jl ~ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ~ ,r+1r1W! WASMINGTON. D.C. 20460 ., . ~1 tiC~. y MAR 3 1993 TMEiHSFECTO/10EMERAL Honorable 2'homas ,T. B1 iley, Jr. Ranking Republican Menber 3ubcommittea on OversiQht and Investiqations Cornittes on Enarqy And ConoQerce House of Representativer WasRincjton, DC 20515 Dear Mr. elileyi In response to your request of Septambor 8, 1992, the Office of Inspector vensra~l has reviewed the award of a subcontract by ICF, Inc., to the Smokinq Policy Institute (SPI). The records we oxamined included both the prine contract and subcontract docunents, along with their related modifications, work aesignm.nt rscords, award fee perforaance ratinqu, and monthly ztatua re?orts. The criteria used for conpliance purposes were the Federal Acquisition Regulations (TAR) and the EPA Acqu3sitior. Regulations (EpMR). Specifically, you requested that we answer the following questions: (1) Did the PPA comply with applicable procurement laws and regulations in the award of the subcontract to SP: to prepare the Smoking Policy Guide? rhs TAR requires contractors to seleet subcontractora on a competitive basis to the maximum practical extent consistent vith the ebjeetiv.s and requireaents of the contract. At the time of your request, we were in the process of reviewing ICr subcontraots. Our preliminary work indicates in numerous instances, ICFts standard procedure is to award subcontracta on a aolc source or non-eompetitive basis to members of a subcontractor "team" based on unsubstantiated assurances that this is in the best interest of the Governtaent. This issua is discussed further in our response to question 6. The award to SPI was different because the firm was not a member of the subcontractor team. Although the award complied with the FAR becauss the contractor received the Aqeneyos approval to place the subcontract on a non-competitive basis, we believe the award was taintsa in how it was processed. First, there was no attempt by ICr to seek competition. Second, the actions by an EPA program officiai qave the appearaZee that he, rather than ICl, seleetsd the subcontractor. ISSUE 43 APPEhTDI!X' B

2 Acoordinq to the FAR. only a contracting officer may enter into contracts on behalf of-the Government. However, in regard to the SPZ award, the EPA program official: o Discusued the task with SPI on luly 11, 1988, in a phone conversation during which he mentioned the availability of $30,000. o Approved the assignment of the task to ICr on July 18, 2982. o Sent a letter to 5PZ on July 23, 1988, solicitinq its interest in initiatinq the taak, aqain mentioninq the availability of $30,000. SPI sent a proposal (dated Auqust 1) to the EPA program of:icial offerinq to use the manuscripts he had provided to produce an edited aanual for 930,000. On August 10, 1988, t:%e contracting officer formally assigned the task to ICl, but on Sept6cber 19, 1988, IICY subcontracted it out to SPI. according to ICF records, t::e budget :or tne assignment was $30,000. The EPA program official admitted in a May 8, 1992, mencrandum that his contacts vith SPi vere inappropriate. ZCF andoubtedly learned of the suflcontraetor's existence from discusaions witTh the EPA program of=ic:al, and in retrospect, it probably appeared that he had selected 5pi. Nonetheless, he also maintained that. he did not share any SPI corrospondence (includinq the proposal) with ICF, and did not direct or pressure TCt to hire the vubcontraetor. Unfortunately, neither he nor ICF can prov:de any specific records relating to these discussions, ana the lact remains that he contacted SPI before An¢ after approving the assigr,aant to ZCF. We agree that the EPA proqram official's conduct was insopropriate, and believe that it may have been an "unauthorized action,• cnder the EPAAR, that is a contract action taken by an individual without authority. Such an action does not legally Qbliqate the Government, although the contracting officer may later ratify the ac:tion. However, if the unauthorized action could not be rata ied, the person committing the action say be hsld personally liable. (2) What were the circumstances surrounding the undated mole source justification? oid the reasons stated in the justification Aest the eriteria for a sole source procurement? In t2te undated sole source document, ICY asserted that: (1) SPI was the most qualified source; (2) that no other firm could do the work without both increasing costs and creating uaacceptable delays; and (3) it would not be feasible for another contractor to devolop the necessary qualifications without

3 expending most, and perhaps all, of the resources available under this work assiqnmont. Aa already discussed, the selection of SPI hinqed, at least partially,.on the actions taken by the EPA program official rather than on any attempt by ICY to obtain competition. Moreover, the EPA official contacted not only SPI, but also a second potential source. Under these circumstances we believe that the procurement should have not proceeded on a non- competitive basis. (3) were there any personal or arganizatior.al conflicts of interest present :n the award of the contract? Part 3 of the FAA addresses personal conflicts of interest. In general, it addresses the avoidance of any conflict or appearance of conflict of intorest in government-contractor relationships. Subpart 9.5 of the tAR addresses orqanizational conflicts of :ntereet, which exist when the nature of the work to be performed under a proposed contract :aay, vithout some restriction on future activities, result in an unfair --oatp.titive advantage to tte contractor, or iapair the contrac;tor's objsctivity in p.rfcrminq the work. Each contracting situation must be examined on the basis of its particv:ar facts and the nature of the proposed contract. The exercise of common sense, good judgment, and sound discretion ia required in both the decision on whether a signif_cant potential conflict exists, and if Lt does, the development of an appropriate means for resolving it. The FAR prcvijes several illustrative examples to help contractinq officers decide vnether organizational conflicts of interest exist. We believe the following example at FAR 9.509 (q) pertains to SFI: Company A recwives a contraat to prepare 4 detailed plan for scientific and techn:cal traininq,of an aqency's personnel. It suggests a curriculum that the aqency endorses and incorporates in its request for proposals to institutions to establish and conduct the training. Company A may not be awarded a contract to conduct the training. SPI haii exiRted for over five years at the time it received the assiqnment to develop ttue Guide. As a nonprofit orqanization. SPI presented itself as a technical export on the issue of environz+ental tobacco smoke in the workplace, and as such, was hired by various orqanizations as a consultant in the field. SPI was taslcad by EPA to develop a quide vhich would provide government and private sector decision-sakers with information on the technical basis for controlling involuntary exposure to envirormental tobacco smoke and to desozibo a variety

4 of technical and policy options for instituting effective smoking restrictions. In our opinion, there was no actual personal or orqunisational conflict of interest. Of course, if 5PI were awarded a contract to implement the Guide, that would constitute an actual organizational conflict of interest. (4) Did the EPA iuproperly contract for preparation oi the Policy Guide before it tiad completed its risk assess3nent on the health effects ot passive smokinq? The Agency took the position that because the indoor air program was largely -on-rsgulatory, a formal risk assessment was not reqiiit'ed. EPA aiso stated that it believed it was appropriate to develcp a policy to reduce exposure to environmental tobacco sn+oke based on conclusions made by the Surgeon General, the National Research Council, and the rntsznational Agency for Research on Cancer. During our review, we searched for specific criteria upon which to evaluate the timinq of the Policy Guide vcrous the risk assessment, but found nonn. Hence, we cannot conclude that the Agency improperly ccntracted for the Guida solelv because :t had not :lrst completed a risk asasaasent. (5) was it necessary fur the Guide to be prepared by private contractors? We reviewed the draft Guide submitted by SPI, the comments made by ICY, at'd the coIIcisnts received from the public. We concluded •:3at it was not necessary for the Culde to have been prepared by a contractor because it was basically compiled from docuser.ta already in exsstence. (6) Is this case unique, or is it merely one of a nuAber of exaaples oi the EPAts use of broad scope prime cor.tract3 as a aeans Qt circumventing the coapetitiva procurement process? Past audit reports have c_iticized the Aqsncy's proclivity for zward:nq broad scope prise contracts. Moreover, when this epeo:fic cvntraat was awarded to ZCF, an Aqency cost analyst suqqested breaking it into aa4allar proeuremrnta in order to increase competition, and possibly obtain siqnilicant cost savinqs. However, such an approach was not selected under the theory that it would be better to consider such a break out when the follow-on contract was awarded. When the follow-on contract vas awarded, it went to ICr. The SPi case was unique because of the communications that :,ccurrsd between SPI and the EPA program otficial before the contract was avarded to ICl. However, it was not unique in that 1

5 it was a non-corinetitive procurement. In our ongoing review of several ICY prine contracts, we noted that most of the subcontracts were sole source awards to ICF "team° meabors. The tsams' members were approved by ZPA when the prime contracts were awarded. Then, wh.n IC!' choss to subcontract a task, EPA usually accepted that the procurement should be non-corpetitive because it was going to a team msmbar. Me did note one instance where ZCF solicited bids and proposals. The proposed subcontract's scope of work included providinq advice to senior EPA management, assistinq in mediating disputes, and racilititing issues related to amendmenta to the Clean Air Act. But it appeared that ICF vent to extraordinary lengths to favor selection of the ineumbent: o Price vas the least important criteria for award. The incumbent was the hicheat bidder, with a proposal 76% more than a firm deeaed almost as technically qualified. c The bulk of the incumbent's technical score used to juatify the award steasaied basically from the fact that the fira was the incur.:bent, and thus familiar with the "dynamics of the EPA program." On the other hand, the lowest bidder was severely penalized becausa its direct experience with snior EPA sanagemant was minimal. o ICF appeared to go out of its way to assist the incumbent, including advising the firm to delete clearly unallovable costs from its proposal, and by allowing it to submit several "best and final of=ers." o ICr boasted that its negotiations with the incumbent "saved" $44,000, omittinq the fact that award to a lower bidder could have saved $90,200. o Three of the eiqht resumea s.+boitted by the incumbent indicated that ths employees had formerly been employed by ICT. (7) Is this an instance of contractors doing inhersntly governmental work? The Or=ioe of Federal Procurement Policy defines an inherently governmental function as an activity that is so intimately related to the public interest as to mandate per=ormancs by government smployees. Such functions would include deciding governmental policy. In our opinion, the contractors were not performing inherently qoveramental work, because EPA made the decisions regarding th. smokinq policy and simply contracted with ICt and SPI to develop a Guide to implement EPA's establishsd policy.

6 Should your statf have any questions, please have tham ccntact P. Ronald Gandolfo, Divisional Inspector General for Audit. Mid-Atlantic Division, on (21S) 597-0497. sincaraiy, U John C. Martin

~,tEO f?.~fT UNRED STATES ENVIRONMENTAL PROTECTION AGENCY 3 WASHINGTON, D.C. 20460 ~ . - MAR 4I993 CFfICE OF RssEARCH,Mo-KLow,EKT Honorable Thomas J. Bliley, Jr. Ranking Minority Member Subcommittee on Oversight and Investigations Committee on Energy and Commerce U.S. House of Representatives Washington, D.C. 20515 Dear Mr. Bliley: Thank you for your letter of December 22, 1992, to former EPA Administrator William K. Reilly, requesting additional information on EPA's activities with respect to environmental tobacco smoke (ETS). Your questions relate to the technical aspects and contracting procedures associated with the ETS Risk Assessment. I am providing a response which answers all of your questions, except questions 6 and 7. Questions 6 and 7 request information regarding contractor business information that has been determined by EPA to be entitled to confidentiality. In accordance with 40 CFR 2.209(b), EPA is prohibited from furnishing confidential information to Congressmen in their individual capacity. A written request of a committee chairman is required. Upon the receipt of a written request from a committee chairman, we will gladly submit the information you request. Gary J,.oley Acting Assista Administi`itor for Research and Development Enclosure ISSUE 43 APPENDIX C M - . . - . _.-,rL..-

E21CLO8URE A RE8PON8E8 TO COI+iGRE88?tAN BLILEY'8 DECEIiBER 22, 1992 LETTER Question 1: Why was the decision made to perform the work on the Risk Assessment by a contractor rather than by EPA personnel? Please furnish any analysis supporting the decision to contract out this work rather than using EPA personnel. Response: Dr. Steven Bayard, an ORD staff scientist and ETS Project Manager, made the decision to use a contractor rather than EPA personnel to perform the work on the Risk Assessment. Dr.Bayard, with the concurrence of his supervisor Charles Ris, determined that in order to complete the Risk Assessment in a reasonable time, technical assistance from a contractor was needed. No written analysis supporting this decision exists. Question 2: Was any consideration given by EPA to using the resources of the National Cancer Institute, or the National Institutes of Health, or some other Federal agency, rather than relying on the services of a private contractor to perform the work on the contract? Please furnish any documents reflecting consideration of the use of other Federal agencies to perform the work performed on the contract. Response: ORD staff did not ask the National Cancer Institute (NCI) or other elements of the National Institutes of Health (NIH) to produce the Risk Assessment since the Federal responsibility for the report lies with the EPA. Assessment work consists mostly of review and analysis of the existing database on compounds. This is fundamentally different from the more basic research conducted at the NIH. However, NCI and NIH scientists were among the external peer reviewers of both the internal and external review drafts of the Risk Assessment. Question 3: Was the contract a separate contract, or was it an extension of some other,pre-existing contract? If it was an extension of a pre-existing contract, please identify that contract and state the basis for the decision to extend that contract, rather than going through the procedures to award a new, separate contract. Please furnish any documentation reflecting EPA's decision. Response: The work assignments (Exhibit A) for the risk assessment work were accomplished as tasks under the following existing contracts: EPA contract numbers 68-D8-0115, 68-DO- 0102, and 68-02-4601. Contract number 68-D8-0115 was with Battelle Columbus Inc. and the latter two contracts were with ICF Inc. The three separate contracts resulted from full and open competition using EPA competitive contract procedures. They did not involve extension of existing contracts.

3 Question 4: Was the contract a sole source or a competitive contract? Please furnish any documentation reflecting the decision made by EPA to use a sole source or competitive contract. Response: The three contracts (68-02-4601, 68-D0-0102, and 68-D8-0115) were competitively awarded. Question 5: If contract was awarded through a competitive process, please describe how this availability of the contract was advertised. Please furnish the documentary evidence for the advertisement of the contract. Response: The three contracting actions were advertised as Requests for Proposals (RFP) in the Commerce Business Daily. The RFP for contract 68-02-4601 was mailed to 187 potential offerors and two offerors (firms) submitted proposals. The RFP for contract 68-DO-0102 was mailed to 318 potential firms and two submitted proposals. The RFP for contract 68-D8-0115 was mailed to 119 potential firms and two submitted proposals. These contract actions were advertised in accordance with FAR procedures (See Exhibit B). Question 6: If the contract was advertised, please identify the prospective contractors that responded to the advertisements. Please furnish copies of the responses and proposals furnished by each of the prospective contractors that responded. Response: In accordance with 40 CFR 2.209(b), we can not give you the actual proposals because of the confidential business information contained within. A written request from a committee chairman is required. However, the three abstracts of the proposals are contained in Exhibit C. ICF and the Institute of Gas Technology submitted proposals which resulted in the competitive award of contract 68-02-4601 to ICF (see abstract DU87-C130). Orkand Corporation and ICF submitted proposals which resulted in the competitive award of contract 68-DO-0102 to ICF (see abstract D000055N1). Battelle and Failure Analysis submitted proposals which resulted in the competitive award of contract 68-D8-0115 to Battelle (see abstract D8-00-575L1). Question 7: Please describe the qualifications of each of the prospective contractors identified in response to Question 6 above.

4 Response: The qualifications of each of the prospective contractors are discussed in the competitive range and source selection documents. CBI information has been redacted from these documents. These documents are enclosed as Exhibit D. Question 8: Please describe the steps taken by EPA to determine the financial self-interest and bias present in each of the contractors identified in response to Question 6 above. Please provide the documents reflecting these steps taken by EPA. Response: EPA regulations require that all offerors responding to EPA RFPs certify that they are not aware of any organizational conflict of interest bearing on their proposal. Those offerors unable to certify this claim are asked to disclose relevant information. This includes a description of the circumstances giving rise to a potential conflict of interest and a proposed plan to mitigate or control for its existence during the term of the contract. All offerors identified in response to Question 6 above certified that they were not aware of any organizational conflict of interest bearing on their proposals. The EPA Technical Evaluation Panel and the Contracting Officer determine, from the information submitted by the offeror, whether a potential conflict can be controlled without interrupting otherwise normal contractor performance. They also determine if an offeror should be disqualified from further consideration. The Technical Evaluation Panel and the Contracting Officer normally investigate instances of potential conflict of interest during the proposal evaluation stage. When a potential conflict of interest exists, the offeror is given an opportunity to respond to this concern during the interrogatory stage (if the offeror is in the competitive range). Offeror responses to conflict of interest interrogatories are analyzed by the Technical Evaluation Panel and the Contracting Officer and determined to be acceptable or unacceptable. Once the contracts are awarded, the contractors are required to submit to the Contracting officer any potential conflict of interest situation that might arise in the performance of the contract work. The Contracting Officer then decides on an appropriate course of action to protect the interest of EPA. Question !: If the process for awarding the contract was competitive, why was ICF awarded the contract? Please furnish all EPA documents that describe the basis by which EPA decided to award the contract to ICF instead of some other contractor. Response: The EPA competitive range and source selection procedures detail the basis for award of competitive contracts.

5 As stated in the response to Question 7 above, the determination of competitive range and source selection documents are enclosed as Exhibit D. Question 10: In our September 8, 1992 letter to Inspector General John C. Martin, Congressman Dingell and I suggested that having SPI draft EPA's official workplace smoking policy guide was "an example of the EPA's employing contractors to perform inherently governmental functions" prohibited by Federal Acquisition Regulations. Sgg 48 C.F.R. Section 37.102(b). Another contract involving the Indoor Air Division and ICF and raising similar concerns has since been brought to my attention. EPA Contract #68D20131 -- worth $4,073,643.00 -- authorizes ICF, among other things, to "provide comprehensive analyses * * * of all legislation introduced and under consideration" potentially affecting the Indoor Air Division, to "(i)dentify specific consequences of bill enactment for "the Division and to *(p)rovide * * * reports needed to respond to Congressional inquiries and request(s) for official testimonies" in connection with proposed legislation. The Indoor Air Division also has entered into nearly identical contract with Environment Health b Engineering, Inc. EPA Contract #68D20066. Are not these types of activities "inherently governmental" in nature and, therefore, prohibited by Federal Acquisition Regulations and OMB Circular No. A-76? In any event, why is not the Indoor Air Division itself in a better position than any outside consultant to assess the impact of enacted and proposed legislation on its own operations? Respons.: The types of activities referenced in the Statement of Work of Section K, "ANALYSES OF LEGISLATIVE INITIATIVES FOR CHARACTERIZATION AND CONTROL OF INDOOR AIR POLLUTION" of EPA Contract {68D20131 are not viewed as contracting for "inherently governmental functions." As you correctly point out, contracting for "inherently governmental functions" is prohibited by FAR 37.102(b) and OMB Circular A-76. EPA contracting policies prohibit the preparation of Agency responses to Congressional inquiries and requests for testimony in connection with proposed legislation. However, it is permissible for a contractor to research and retrieve factual data for the Agency because it is EPA's ultimate responsibility to develop and issue the requested Agency responses. By reserving the actual preparation and development of the Agency's responses to be performed by Agency personnel, the Agency's ability to develop and consider options other than those provided by the contractor would not be restricted by the work performed by the contractor. The Agency's 1990 contracting policies, which were in effect at the time of the award of the two EPA contracts cited in question 10, are in general conformance with recent guidance

6 issued by the Office of Federal Procurement Policy on September 23, 1992. The Office of Federal Procurement Policy explanatory text concerning its Policy Letter 92-1, "Inherently Governmental Functions" makes it clear that although contractors may not actually draft Congressional testimony or responses to Congressional correspondence, "contractor reports, conclusions, summaries, analyses, and other work products may be quoted or otherwise referenced in Congressional testimony and correspondence." Paragraph 7(b)(2) of the Office of Federal Procurement Policy Letter 92-1 provides guidance indicating that potential problems of "inherently governmental functions" might arise where "the contractor's involvement in Agency functions is or would be so extensive or the contractor's work product is so far advanced toward completion, that the Agency's ability to develop and consider options other than those provided by the contractor is restricted." The Agency program and procurement offices responsible for the issuance of work assignments under the above mentioned contracts must comply with the Agency's 1990 contracting policies which require careful examination for "partiality, favoritism, and for the veracity of any assumptions, options, and opinion stated in the contractor's work product to ensure that the Agency's issuance fully represents the Agency position." Although Section K of the Statement of Work requires the contractor to analyze pending legislation and to identify its consequences, EPA's Indoor Air Division would receive this contractor's work-products as analyses and compilations only. The contractor would be required to fully develop and disclose the bases of its analyses so that EPA's Indoor Air Division could properly exercise its discretion to assure that the Agency's position is independently determined and not subject to any extraneous bias attributed to the contractor. However, no work assignments have been issued under this section of the statement of work. If work assignments are issued under this section of the statement of work, we will apply the proper management oversight consistent with FAR Part 37.2. As you point out, the Indoor Air Division is in fact responsible and in the best position to determine the impact of legislation on its own operations. However, the Indoor Air Division does use contract support in an appropriate manner. Contract support is appropriately used to develop information and conduct analysis which serves as an input, along with other information and analysis, to the decision making process. As stated above, the actual development and preparation of the Agency response are functions reserved for the Agency.

7 Question 11: Are there any other EPA contracts or subcontracts with ICF related to ETS or indoor air quality? If so, please identify each such proposed contract or subcontract, and furnish documents describing the nature of each contract. Responses We have reviewed our files and with the exception of the aforementioned contracts, do not have any other EPA contract or subcontract with ICF related to ETS or indoor air quality. Question 12: Is ICF under consideration for any other EPA contract or subcontract related to ETS? If so, please identify each such proposed contract or subcontract, and furnish documents describing the nature of each contract, whether it is a sole source or competitive contract, and the stage of each such contract in the contracting process. Response: At the present time, we do not have any contracts or subcontracts related to ETS for which ICF is currently under consideration. This does not rule out the possibility that ICF may respond to future solicitations in this area.

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