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MAY 10, 1996
WHITE HOUSE
[5] Further Delay Announced in Release of
Commission Report
The President's Commission on Risk Assessment and
Risk Management has announced that it will release its
draft report to Congress and the president on June 13,
1996, instead of May 9. This is the second recent delay
for release of the report. Created under the Clean fUr
Act Amendments of 1990, the commission was
established to "make a full investigation of the policy
implications and appropriate uses of risk assessment
and risk management in regulatory programs under
various federal laws to prevent cancer and other
chronic human health effects which may result from
exposure to hazardous substances." Further details
about the commission and its mission appear in issue
117 of this Report, February 16, 1996.
If the report is released on June 13 as scheduled,
comments will be due by July 18. See Federal Register,
May 1, 1996.
ENVIRONMENTAL PROTECTION AGENCY
(EPA)
[6] Forum Held on Cancer Risk Assessment
Guidelines
On May 6, 1996, EPA co-sponsored a forum on its
cancer risk assessment guidelines. Some 300 represen-
tatives of industry, EPA and the scientific and
environmental communities attended the forum,
during which an overview of the guidelines was
presented by Dr. Jeanette Wiltse of EPA. The remain-
der of the forum consisted of panel presentations on (i)
dose-response issues; (ii) hazard identification/risk
characterization/weight of evidence; and (iii) applica-
tion in risk management. Panelists were from industry,
EPA, consultant organizations and academia. OSHA's
Adam Finkel was originally scheduled to address risk
management issues but cancelled his presentation to
work on OSHA budget matters.
Most forum participants generally favored the
approach of the guidelines, particularly with regard to
the use of non-tumor data in lieu of conservative
default assumptions. With respect to EPA's proposed
descriptors of carcinogenicity, one panelist questioned
whether there would be confusion as risk managers
attempt to compare existing alphanumeric chemical
classifications with the proposed scheme. An EPA
representative indicated that the agency was consider-
ing re-evaluating chemicals that are presently classified
by the alphanumeric designation and suggested that a
Federal Register notice may soon announce this
re-evaluation.
3
A panelist who is a member of the President's
Commission on Risk Assessment and Risk Manage-
ment highlighted several key recommendations that
would be made by the commission in its
soon-to-be-released report. Those recommendations
included (i) using a common metric for both carcino-
gens and non-carcinogens; (ii) giving consideration to
margin of exposure; (iii) emphasizing epidemiological
data over animal data; and (iv) treating the action of
individual chemicals within a mixture as antagonistic
rather than synergistic.
Several speakers emphasized that under the proposed
guidelines the linear multistage model will no longer be
used but that nonlinear defaults, if supported by data,
would be appropriate in conducting risk assessments.
With respect to EPA's proposal to use mode-of-action
data to determine the relevance of animal studies and
the shape of the dose-response curve, the agency
expects numerous technical comments.
[7] NRDC Releases Study on Particulates and
Mortality
The Natural Resources Defense Council (NRDC) has
released a report, titled "Breath-Taking: Premature
Mortality Due to Particulate Air Pollution in 239
American Cities," in which the group reportedly claims
that 64,000 people may die prematurely from cardiop-
ulmonary causes linked to particulate air pollution.
The NRDC, a Washington-based environmental
group, apparently wants EPA to strengthen its standard
for particulate matter.
EPA Administrator Carol Browner responded to
reports of the study by stating that the agency is
`°moving ahead quickly to come up with conclusions.
The science suggests that the smaller particles really
are a problem." The NRDC reportedly claims that
curbing small-particle pollution (2.5 microns or
smaller), which is not currently regulated, could save
56,000 lives each year. The NRDC study is appar-
SHB
4
ently based on the findings of a 1995 epidemiologic
study conducted by the American Cancer Society and
Harvard Medical School.
According to a press report, the NRDC study
indicates that sources of fine particle pollution include
coal-fired power plants, gas and diesel-powered
vehicles, industrial boilers, dust, and soot. Representa-
tives of electric utilities and automobile manufacturers
have reportedly taken issue with the report's call for
increased pollution control, arguing that more study is
required before the national ambient air quality
standard for particulate matter (PM NAAQS) is
changed. A representative of the American Mining
Association apparently referred to the research underly-
ing the report as "junk science."
Data from the NRDC report are available on the
Internet (http://www.nrdc.org/trbreath/toMort.html).
See Cable Network News, Internet web site and The New
York Times, May 9, 1996; PR Newswire, May 8, 1996.
[8] EPA Announces Availability of Particulate
Matter Criteria Document; Meeting Scheduled
on Committee Review of Staff Paper
EPA has announced that its final report, "Air Quality
Criteria for Par-ulate Matter" (EPA/600/P-95/
001aF-cF), is now available for public inspection. This
document, which "evaluates the latest scientific
information useful in deriving criteria to form scientific
bases for decisions regarding possible revision of
current PM NAAQS" (Particulate Matter National
Ambient Air Quality Standards), will be available
within the next week via EPA's Technology Transfer
Network Bulletin Board System (919) 541-5742.
Bound copies of the report will be made available on
May 15, 1996; an executive summary has been pro-
vided on the Office of Research and Development
Internet home page (http://www.epa.gov/ORD).
EPA is charged under the Clean Air Act with listing
"pollutants that may reasonably be anticipated to
endanger public health or welfare and to issue air
quality criteria for them. The air quality criteria are to
reflect the latest scientific information useful in
indicating the kind and extent of all effects on public
health and welfare that may be expected from the
presence of the pollutant in ambient air." The criteria
document "evaluates the latest scientific information
ETS/IAQ REPORT, ISSUE 123
pertaining to health and environmental effects associ-
ated with airborne particulate matter."
Meanwhile, the Clean Air Scientific Advisory Com-
mittee (CASAC) of EPA's Science Advisory Board has
scheduled a meeting for May 16-17 in Chapel Hill,
North Carolina, to "review and provide advice to EPA
on the draft staff paper for particulate matter (Review
of National Ambient Air Quality Standards for Par-
ticulate Matter: Policy Assessment of Scientific and
Technical Information)." This document "is intended
to bridge the gap between the scientific review con-
tained in the criteria document and the judgment
required of the Administrator in setting a NAAQS."
CASAC will consider presentations by agency staff and
the public before making recommendations to the
administrator. Written comments may be submitted
prior to the meeting; the document is available from
EPA or can be accessed via EPA's Technology Transfer
Network Bulletin Board System.
According to press reports, EPA staff is urging
Administrator Carol Browner to establish "an ex-
tremely stringent" new PM standard. The revised draft
staff paper reportedly calls for an annual fine particle
standard between 12.5 and 20 micrograms/cubic meter
and a daily standard within an 18 and 60 microgram/
cubic meter range. In addition, EPA staff is apparently
-alling for retention of the current PM 10 daily stan-
dard. Industry critics have reportedly attacked the
proposal, claiming it cannot be scientifically justified
and will impose "colossal costs" on industry, while
being nearly impossible to meet.
EPA has been directed by court order to decide by
summer 1997 whether to affirm or revise the current
PM NAAQS, which targets particles less than 10
microns in diameter. The most recent draft revision of
ASHRAE Standard 62-1989 on ventilation references
EPA ambient air quality standards. See Federal Register,
May 3 and 7, 1996; Inside EPA and Inside Cal/EPA,
May 3, 1996.
SHB
6
MAY 10, 1996
OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION (OSHA)
[9] OSHA Finalizes FY 1996 Goals and Objectives
OSHA recently released the agency's final fiscal year
(FY) 1996 goals and objectives to its stakeholders. The
goals, which have apparently been scaled back due to
budget constraints and government furloughs,
include (i) eliminating hazards through offering
partnerships or traditional enforcement, (ii) imple-
menting a common sense strategy, developpd in
partnership with stakeholders, for rulemaking and
alternative approaches to emerging and priority safety
and health issues, and (iii) focusing OSHA programs
and service delivery systems using internal and
external partnerships to achieve results.
As part of OSHA's rulemaking goal, the agency hopes
to publish its proposed safety and health program rule
by September 1996, and to "issue three final health
standards, one final safety standard, and a final regula-
tion on abatement verification." OSHA does not
further specify which of its pending rulemaking
initiatives it expects to finalize to meet this goal. The
agency is also planning to develop an operation plan
"for electronically d:sseminating safety and health
information to the public."
[101 NACOSH Meeting Announced
The National Advisory Committee on Occupational
Safety and Health (NACOSH) will meet on May 23,
1996, in Washington, D.C., to consider, among other
matters, an overview of current OSHA regulatory
activities. Written comments may be submitted and
members of the public wishing to make an oral presenta-
tion must notify OSHA prior to the meeting.
NACOSH was established under the Occupational
Safety and Health Act of 1970 to advise the secretary of
labor on matters relating to the administration of the
Act. The recently appointed chair of the committee, Dr.
Kathleen Rest of the University of Massachusetts
Medical Center, joined the committee as a public
representative. See Federal Register, Apri126, 1996.
5
[11] EPA Post-Hearing Brief Criticizes CRS Report
and Industry Research; Agency Subsequently
Requests To Withdraw Portion of Brief
This is another in a series of summaries of
post-hearing submissions to OSHA's public docket in
the rulemaking on indoor air and indoor smoking
(Docket No. H-122). These submissions are contained
in full text in OSHA's docket. The public comment
phase of the rulemaking closed February 9, 1996. It is
now up to OSHA to review the record and decide on
its next step with respect to the rule.
Steven Bayard, the EPA statistician primarily respon-
sible for EPA's Risk Assessment on ETS, submitted a
post-hearing brief to OSHA's public docket in which
he criticizes the 1995 Congressional Research Service
(CRS) report on ETS and a manuscript submitted to
OSHA by Michael Ogden, a R.J. Reynolds scientist.
Bayard also forwarded a document authored by James
Repace that is critical of several submissions in the
rulemaking record. EPA subsequently requested that
the Repace document be withdrawn from the record
because it had not passed agency review.
Bayard's cover letter refers to "EPA's major
concern[s]" with the 1995 CRS Report. As attach-
ments, he submitted EPA's comments on the June 5,
1995, workshop review draft of the CRS report
(prepared by Bayard and Jennifer Jinot) and a January
1996 EPA letter and comments on the final version of
the CRS Report.
The January 1996 EPA letter to CRS, signed by
Michael Callahan, director of the National Center for
Environmental Assessment, states, "While the final
report is an improvement over the draft, the overem-
phasis on uncertainties and the proposal of an
unsupportable threshold model for environmental
tobacco smoke risk severely limit its credibility." In the
letter, EPA specifically claims that the CRS Report
"selectively focuses on a few recent U.S. studies,"
"repeatedly exaggerates uncertainties and is far too
equivocal in drawing conclusions," presents a "grossly
unbalanced" treatment of the issue of bias, and pro-
poses a threshold model that is "not supportable,"
"indefensible," and is based on a flawed methodology.
In the brief, Bayard also comments on a manuscript
of a study, "National Incidence of Smoking and
Misclassification Among the U.S. Married Female
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6
Population," submitted to the OSHA record by
Michael Ogden, a scientist at R.J. Reynolds. Bayard
suggests that the results of the study "may be suspect"
due to the use of a particular market research firm that
had conducted similar interviews for other studies by
R.J. Reynolds. Bayard states that the smoking status
misclassification rates in studies in which this firm
participated are higher than those reported elsewhere.
He also suggests that the study was not conducted to
provide basic data on misclassification, but rather, :o
be used in downward adjustments of ETS risk esti-
mates based on epidemiologic studies.
Bayard also forwarded to OSHA a memorandum
prepared by EPA physicist James Repace, who was a
member of the panel representing OSHA at the public
hearings on the proposed rule on indoor air and indoor
smoking. in his analysis, Repace claims that a number
of submissions to the docket -- namely, those of
Ogden, JefFrey Idle, Stanley Greenfield, Robert
Nilsson, the Gradient Corp., and Roger Jenkins -- "are
in conflict with theory or experiment, or are based
upon workplace measurements which are atypical." For
example, Repace comments that "it would be impru-
dent of OSHA or EPA to rely on the data from the
Oak Ridge/RJR study," based on his contention that
the data set presented by Jenkins shows nicotine valuP-
lower than would be predicted by a model developed
by Repace, Bayard and Jinot.
EPA Office of Research and Development Director
William Farland subsequently requested that the
OSHA docket office withdraw the Repace memoran-
dum and its attachments. Farland stated: "The portion
of the comments to be withdrawn has not had suffi-
cient time for EPA clearance for its scientific and policy
content. Thus, at this time it cannot be construed as
representing EPA's views." The OSHA docket office
marked the documents in question "Withdrawn by
EPA on 2/12/96"; however, the documents remain in
the record and are therefore available to the public.
NATIONAL INSTITUTE OF OCCUPATIONAL
SAFETY AND HEALTH (NIOSH)
(12] NIOSH Research Agenda Formally Released
With asthma and chronic obstructive disease listed as
research priorities, the National Occupational Research
Agenda was released by NIOSH on April 29, 1996, to
ETS/IAQ REPORT, ISSUE 123 _ -
coincide with the commemoration of OSHA's 25th
anniversary. Details about the agenda appear in issue
119 of this Report, March 15, 1996. According to the
executive summary of the document, the agenda is
intended to provide a framework for occupational
safety and health research in the next decade for
NIOSH and the entire occupational safety and health
community. The agenda lists 21 research priorities in
three categories. Additional priorities include (i) indoor
environment, (ii) special populations at risk and (iii)
research risk assessment methods. Copies of the report
can be obtained from NIOSH. See BNA Occupational
Safety erHealth Reporter, May 1, 1996.
[ 13] IAQ Study To Be Released in May
According to a press report, NIOSH will release its
report on IAQ problems in buildings during the
annual convention of the American Industrial Hygiene
Association in Washington, D.C., May 18-24, 1996.
NIOSH has apparently been studying problem build-
ings since its inception, and has investigated more than
1,000 complaints. Complete data have been developed
on 104 office buildings since a CBS television broad-
cast highlighted the issue in October 1992. A NIOSH
spokesperson has reportedly indicated that IAQ
problems fall into three broad categories: ventilation
problems, HVAC system operations and maintenance
problems, and facility problems. According to NIOSH,
the most common outdoor sources of poor IAQ
include ETS from people smoking near doors or air
intakes. Indoor and outdoor "contaminant sources"
reportedly contribute to fewer IAQ problems than
HVAC maintenance, operation and design. See Indoor
Pollution News, April 29, 1996.
AMERICAN SOCIETY FOR TESTING AND
MATERIALS (ASTM)
[14] IAQSubcommittee Considers ETS Sampling
and Analysis Standard
An ASTM subcommittee is reportedly working on a
standard for the measurement of ETS particles.
ASTM's D22.05 indoor air subcommittee apparently
develops standard methods, practices and guides
related to sampling and analysis of indoor atmospheres.
According to Hal Levin, D22.05 subcommittee chair, a
new air cleaning device currently under development
SHB
93140307
MAY 10, 1996
will separate ETS particles from the air using ultravio-
let light. If successful, the device would apparently
permit IAQ investigators tc measure ETS particles.
According to Levin, the subcommittee planned to
debate the proposed standards on ETS and carbon
dioxide at a meeting in Orlando, Florida, in April
1996. See IndoorAir Review, April 1996.
[15] Thirty-One U.S. Jurisdictions Have Privacy
Laws; None Enacted Since 1993
Twenty-nine states and the District of Columbia
statutorily prohibit employment discrimination against
persons because they smoke on their own time or,
more generally, because they spend their own time
using lawful products or engaging in lawful activities.
In the 31st jurisdiction, Delaware, an executive order
prohibits discrimination against state government
employees who smoke off the job. Because these
measures protect employee pursuits outside the
workplace, they are often referred to collectively as
privacy laws.
The newest privacy law was enacted in Montana in
1993. While bills to provide or strengthen privacy
legislation were introduced in the 1995-96 legislative
sessions in four states (Hawaii, Illinois, Massachusetts and
Nebraska), none of the bills has emerged from committee.
All of the privacy laws were enacted during a five-year
period that began in 1989 and peaked in 1991. Year by
year, the number ofjurisdictions enacting privacy laws
is as follows: three in 1989, five in 1990, 14 in 1991,
eight in 1992, and one in 1993.
The laws generally protect employees of both public
and private organizations, with three exceptions; the
statutes in Arizona and Virginia, as well as the execu-
tive order in Delaware, apply only to public employees.
While the provisions in all of the privacy laws appear
to prohibit discrimination against employees or job
applicants who smoke on their own time, the jurisdic-
tions use different language to describe the class of
persons who are protected against discrimination. The
differing expressions of protection can be grouped into
four basic categories, which can be ordered according
7
to the size of the protected class. In order from the
smallest to the largest protected class, the 31 jurisdic-
tions break down as follows (all protections apply only
to uses or activities on the employee's own time): six
explicitly protect persons who smoke; 15 protect
persons who use tobacco; seven protect persons who
use lawful products; and three protect persons who
engage in lawful activities. In the last two categories,
some states limit the products or activities that qualify
for protection.
A chart providing basic information about each
jurisdiction's privacy law is attached as Appendix C.
In states without privacy laws, a smoker's protection
against employment discrimination is, at best, uncer-
tain. In both Florida and New Mexico, courts have
rejected employment discrimination claims brought by
smoker-plaintiffs who were not protected by privacy
legislation. See City of North Miami v. Kurtz; 653 So.
2d 1025 (Fla. 4/20/95), cert. drniecy~ 116 S. Ct. 701 (1/
8/96); Graffv, Thermal Control, Inc., No. 20,338
(New Mexico Supreme Court) (decided February 17,
1993) (not online). In Indiana, however, an intermedi-
ate appellate court awarded unemployment
compensation to an employee who was fired because
he had violated a company rule that prohibited em-
ployees from using tobacco, alcohol and drugs at
anytime -- whether at work or away from work. See
Best Lock Corp. v. Review Board of the Indiana Dept. of
Employment and Training Services, 572 N.E.2d 520
(Ind. Ct. App. 6/4/91). The employee in Best Lock,
Daniel Winn, had been fired for consuming alcohol
away from work.
The above cases are summarized in Shook, Hardy &
Bacon's ongoing overview of ETS cases in the United
States not involving cigarette manufacturers, which is
available by completing the fax communication sheet
at the end of this Report.
SHB
8
STATE AND LOCAL GOVERNMENTS
REGION 1-NORTHEAST
MA, ME, NH, RI, VT
[16] Massachusetts IAQ Bill Pending
The Massachusetts House has passed
and sent to the Senate Ways and Means
Committee a bill that would authorize
the state Department of Labor and
Industries to apply a broad range of ventilation stan-
dards to promote indoor air quality in state buildings.
House Bill 839 would allow department officials to use
ventilation standards found in the Massachusetts
building code or other more stringent codes when
inspecting new state buildings or those renovated after
January 1990. The bill would also require the depart-
ment to develop an IAQ improvement plan for state
buildings in conjunction with the new ventilation
standards. See Indoor Air Review, April 1996.
REGION 3-CHESAPEAKE
DC, DE, MD, NJ, PA
[17] Maryland Countv Proposes Restaurant and Bar
Smoking Ban
Montgomery County, Maryland,
Council member Neal Potter has
introduced a bill to prohibit smoking in
all of the county's eating and drinking
establishments, according to a press report. Bars,
restaurants, dinner theaters, cafeterias, and school and
institutional food service facilities would all apparently
be subject to the ban. According to the report, Mont-
gomery County adopted a bill in 1990 that required
private businesses with more than two employees to
REGION 6-SOUTHEAST
AL, FL, GA, MS, SC, TN
be named the Victor Crawford Smoke-Free Restaurant
Law, in honor of the former state senator who was
instrumental in passing the state workplace smoking
law last year. See The Washington Post, May 2, 1996.
[18] Florida School Smoking Bill Is Vehicle for
Additional Antismoking Legislation
Florida Senate Bill 322, which would
f ne students who smoke within 1,000
feet of school property, has become a
launching pad for antismoking legisla-
tors to attack everything from cigarette advertising to
smoking in restaurants, according to press reports. The
bill would restrict any person under age 18 from
smoking within 1,000 feet of all public and private
schools, and violators could be fined up to $250 or be
required to perform 50 hours of community service.
When the bill was debated in the Florida House on
April 29, Representative Lois Frakel (D-West Palm
Beach) attempted to add an amendment that would
prohibit smoking in all public places where children
are present, including restaurants. The amendment was
defeated by a voice vote. Representative Bob Starks
(R-Casselberry) then proposed an amendment to
prohibit all cigarette advertising in Florida, but later
withdrew the amendment. The bill was passed by the
House on April 30, 1996. It had previously passed the
Senate on April 17. See Gannett News Service, April 29,
1996; Sun-Sentinel (Fort Lauderdale), April 30, 1996.
REGION 8-MIDWEST
AR, KS, MO, NE, OK
ETS/IAQ REPORT, ISSUE 123
provide smoke-free workplaces. That law, the first of its [19] Omaha Smoking Ban
kind in the region, did not cover restaurants and bars.
~
Apparently some council members want to examine
he effects of Maryland's state smoking law before - __
the more restrtctive coun measure
It ts
ursutn
t
g ry
.
p
uncertain at this time whether the new bill has enough
support to pass. The Restaurant Association of Mary-
land and the county's Hotel, Restaurant and Licensed
Beverage Association both reportedly oppose the bill.
Potter has indicated that the measure, if passed, would
Placed on Hold
The Omaha, Nebraska, city administra-
tion has apparently decided to postpone
implementation of an executive order
prohibiting smoking in city facilities and
vehicles, scheduled to take effect May 1, 1996. The
action was taken after the city council held a public
hearing in late April to discuss the policy. A spokesper-
son for the mayor was quoted as saying, "The new
policy is on hold until we have a chance to discuss
SHB
93140309
MAY 10, 1996
some of those opinions on how the policy might work
or what revisions might be made." See Omaha World
Herak April 24, 26 and 30, 1996.
REGION 1 0-WESTERN
AZ,CO,MT,ND,NM,SD,UT,WY
[20] Colorado Springs Airport To Allow Smoking in
Designated Areas
#~ A recent press report ind:cates that the
~~ acting city manager of Colorado Springs
a~ has issued an order to permit smoking in
designated areas of the airport's restau-
rants and bars. "This seems like a reasonable thing to
do, provided the smokers have a special place and are
isolated from the nonsmokers," Acting City Manager
David Nickerson is quoted as saying. "I don't see
anything wrong with trying it."
Smoking has been prohibited at the airport since the
facility opened in 1994. Apparently, owners of the
airport's restaurants and bars will be required to install
special filtration systems in the newly designated
smoking areas. See The Denver Post, May 5, 1996.
[21] Arizona Prisons To Prohibit Indoor Smokit.b
in June
State prison officials will prohibit indoor smoking by
prison inmates beginning in June 1996, according to a
press report. The policy will reportedly affect 19
prisons housing 22,000 inmates, 70 percent of whom
smoke. The current plan calls for a complete smoking
ban in all prison facilities; however state Department of
Corrections officials are reportedly considering a
change that would allow prison staff to smoke indoors
in designating smoking areas.
The move was apparently made in response to a series
of lawsuits filed by nonsmoking prisoners in the state.
In the 18 suits now pending, the prisoners reportedly
allege that prison officials have violated the prisoners'
constitutional rights by exposing them to ETS while
incarcerated. No state or federal suit of this kind has
been successful to date.
Maricopa County officials, who implemented a prison
smoking ban in 1993, reportedly claim that the policy
has saved the county money by reducing illness among
inmates. See The Arizona Republic, April 20, 1996.
9
[22] Boulder Smoking Law Could Be a Real Show
Stopper
A dinner theater in Boulder, Colorado, is at odds
with a November 1995 local ordinance that prohibits
smaking in public buildings. The Boulder Dinner
Theater is reportedly staging a production of "Grand
Hotel," in which four actors smoke cigarettes for less
than one minute during the two-hour show. After
receiving complaints from patrons, the Boulder Office
of Environmental Enforcement apparently ordered
theater owner Ross Haley to modify the script to
eliminate smoking or face up to 90 days in a county jail
and a $1,000 fine.
Haley reportedly installed smoke removers in the
theater before the musical opened and warned ticket
purchasers about the smoking. He also apparently
offered to provide refunds to ticket holders concerned
about the smoking. Any attempts by Haley to modify
the script might violate federal copyright laws, accord-
ing to press reports.
Mayor Leslie Durgin and environmental enforcement
officials reportedly told Haley that actors in the
production could smoke herbal cigarettes until the
production closes on June 9. Haley rejected the city's
offer, however, due to the distinctive odor produced by
the herbal cigarettes. He is reportedly examining his
legal options with the volunteer assistance of attorneys
from the law firm of Holland and Hart. City officials
have apparently indicated that they will begin issuing
citations to the theater, each imposing a maximum fine
of $1,000. See The Denver Post, April 26, 27 and May
1, 1996; The Associated Press, April 26 and 27, 1996;
The Orlando Sentinel April 28, 1996; Chicago
Sun-Times, April 29, 1996; UPl, April 30, 1996; Rocky
Mountain News, May 1 and 4, 1996; Los Angeles Times,
May 5, 1996.
REGION I I-CALIFORNIA/HAWAII
CA, H I
[23] Cal/EPA To Hold Ombudsman Forums
Ombudsman forums will be held by
California/EPA on May 13 and May 20,
1996, to brief stakeholders on the status
of agency programs, regulations and
legislation, according to a press report. Apparently,
SHB
10
each ombudsman will have approximately 30 minutes
to discuss issues related to individual boards or depart-
ments, followed by a question-and-answer period. The
forums are expected to cover Proposition 65, regula-
tory consistency and structure, and the state
implementation plan. The forums are apparently the
first meetings of this kind conducted by Cal/EPA. See
Inside C,zl/EPA, May 3, 1996.
ETS-RELATED LITIGATION AGAINST
CIGARETTE MANUFACTURERS
[24] Ramsey-Buckingham: Argument Scheduled for
May 9; Plaintiff Dies
On May 9, 1996, the New Hampshire Supreme
Court heard argument in plaintiff's appeal from the
trial court's 1995 judgment in defendants' favor. The
trial court granted defendants' motion to dismiss based
on failure to state a claim. Plaintiff Roxanne
Ramsey-Buckingham died on or about May 2.
PlaintifFs counsel is attempting to substitute as plain-
tiff Roxanne Ramsey-Buckingham's husband, Bruce
Buckingham, as administrator of the estate.
Roxanne Ramsey-Buckingham alleged lung cancer as
a result of exposure to ETS in a wide variety of settings
that are not limited to the workplace. Defendants in
the case are the six major U.S. cigarette manufacturers
and a local ~.aailer. Ramsey-Buckingham v. R.J.
Reynolds, etal. (filed in Superior Court, Strafford
County, New Hampshire; pending before Supreme
Court of New Hampshire) (filed November 11, 1994).
PRO SE LITIGATION
[25] Vrasic. Hearing Scheduled for May 17
The court has scheduled a hearing in the case for May
17, 1996. R.J. Reynolds, the only defendant, filed
special exceptions, an answer and affirmative defenses
on April 26. Unlike some other states, Texas permits
attorneys to participate in small claims courts.
Plaintiff alleges that he has sustained "permanent
damage" to his lungs and has a chronic cough as a
result of exposure to environmental tobacco smoke
from cigarettes smoked by his parents ~n the family
ETS/IAQ REPORT, iSSUE 123
home. He further contends that his doctors have
diagnosed his alleged ailments as having been caused -
by his exp.,sure to ETS. Vrasic v. R.J. Reynola! Tobacco
Co. (Small Claims Court, Collin County, Texas) (filed
April 4, 1996).
ETS/IAQ LITIGATION NOT INVOLVING
CIGARETTE MANUFACTURERS
WORKPLACE: AMERICANS WITH DISABILITIES-
- ACT (ADA)
[261 Muller v. Costello, 1996 WL 191977 (U.S.
District Court, Northern District, New York)
(decided April 16, 1996)
A U.S. district court has ruled that a New York state
prison correctional officer may pursue his claim that
prison supervisors violated the ADA by inadequately
accommodating his purported inability to tolerate ETS
and by retaliating against him for requesting reasonable
accommodation. Plaintiff Keith Muller works at the
Midstate Correctional Facility in Marcey, New York.
On several occasions, Muller allegedly experienced
serious asthma attacks after exposure to ETS at the
nrison. Muller's supervisors contended that they
reasonably accommodated Muller's condition by
assigning him to nonsmoking areas and providing him
with a "gas mask" to filter ETS. Muller countered that
the gas mask constituted a security risk and "subjected
him to ridicule from employees and inmates."
The court cited Staron v. MacDonald's Corp., 51 F.3d
353 (2d Cir. 1995) in deciding that a claim of inad-
equate ADA accommodation requires a factual
determination that precludes dismissal at the early
stages of a case. The court employed similar reasoning
:- sustaining Muller's ADA retaliation claim. The
court also declined to dismiss Muller's intentional
infliction of emotional distress claim against an
unidentified prison colleague. The court did, however,
dismiss several other common law and statutory claims
against the state and individual defendants
SHB
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MAY 10, 1996
WORKPLACE: DISABILITY DISCRIMINATION
[27] ttilcNeil v. Runyon, Postmaster Genera4 1996
WL 106383 (Equal Employment Opportunity
Commission) (decided March 7, 1996)
The Equal Employment Opportunity Commission
has ruled that the U.S. Postal Service did not unlaw-
fully discriminate against an employee who claimed she
was disabled due to migraine headaches caused by
workplace ETS. Beginning in 1986, Sharon McNeil
experienced severe migraine headaches. Her doctors'
statements from 1991 and 1992 stated that ETS
tended to trigger the headaches and recommended that
McNeil be allowed one or two days' absence per
month to accommodate the condition. McNeil was
discharged from her job for excessive absences, which
during one month totaled 80 hours.
The commission found that McNeil was "disabled"
under the Rehabilitation Act and that the Postal
Service reasonably accommodated her condition by
allowing her one to two days' special absence per
month and designating the employees' lunch room as
the building's only smoking area. The commission
concluded that McNeil's absences greatly exceeded the
reasonable ac:.omm -lation and that her termination
by the Pustal Service was not discriminatory.
[28] Spiegel v. Browner, 1996 WL 134928 (U.S.
Equal Employment Opportunity Commission)
(decided March 21, 1996)
The U.S. Equal Employment Opportunity Commis-
sion (EEOC) has denied Steven Spiegel's claim that the
Environmental Protection Agency (EPA) unlawfully
failed to accommodate his multiple chemical sensitivity
disability. Spiegel alleged that the agency failed to meet
with him at the location he requested, which according
to Spiegel, was the only agency building accessible to
him because of his disability. Spiegel, whose primary
work station is his home, claimed that EPA's refusals
resulted in his inability to perform his duties as chief
union steward. The commission found that Spiegel
requested a reasonable accommodation as a union
steward, not as an employee, and that his complaint
alleged an unfair labor practice rather than a claim for
relief by the EEOC.
WORKPLACE: IAQ
11
[29] Jensen v. County ofSanta Clara, No. 95-1421
(U.S. Supreme Court) (petition for certiorari
denied April 22, 1996)
The U.S. Supreme Court has declined to review a
decision by the Ninth Circuit Court of Appeals
dismissing various claims brought by a former county
employee against several defendants for injuries
allegedly sustained from pesticide exposure in the
workplace. Plaintiff Cheriel Jensen sued her former
employer, Santa Clara County, California, two pesti-
cide companies, and 16 other named defendants,
claiming the pesticide exposure aggravated her asthma
and caused other injuries. The district court dismissed
Jensen's complaint after she failed to comply with a
court order. The Ninth Circuit reinstated the com-
plaint and ruled that Jensen could pursue her claims
against the pesticide companies. The court also decided
that workers' compensation provided Jensen's only
remedy against the county, and that Jensen's Ameri-
cans with Disabilities Act claim failed because she quit
her job prior to the Act's effective date. Jensen ap-
pealed all of the claims dismissed by the Ninth Circuit
to the Supreme Court, which refitsed to review the case.
WORKPLACE: WORKERS' COMPENSATION
[30] Employer. Copake- Taconic Hills Central School
District, 1996 WL 172540 (New York Workers'
Compensation Board) (decided April 3, 1996)
The New York Workers' Compensation Board has
denied benefits for claimant's alleged allergic rhinitis,
multiple chemical sensitivity (MCS) and chronic
fatigue, which she claimed resulted from exposure to
fumes produced by photocopiers at the school district
office where she worked. Her treating physician
testified that her condition was due to "xenobiotic"
substances, those "biologically foreign to the process of
living," found in her work environment. The doctor
who testified for the school district stated that MCS "as
a disease from unidentified chemicals in the air has
never been substantiated by the Academy of Allergy &
Immunology. There is no way of objectively evaluating
these complaints." The board found that the evidence
did not support a f nding that the claimant sustained
either an accidental injury or an occupational disease
under th W k' C t' I
e o
t
r ers ompensa
on w. N
a
SHB
12
AMERICANS WITH DISABILITIES ACT (ADA)
[31] Visiting Nurses Sued for Refusing to Accommo-
date Woman with Multiple Chemical Sensitivity
Mayotte Jones, who claims her multiple chemical
sensitivity keeps her housebound, has reportedly sued
the visiting nurses of Boston's MetroWest Medical
Center for refusing to stop using perfume, scented
shampoo and soap, fabric softener, and heavy deter-
gents. She has apparently also requested that the nurses
not smoke or pump gas before visits and that they not
wear dry-cleaned clothes. Jones alleges that by refusing
to meet her demands the nurses are depriving her of
their services. She seeks a preliminary injunction to
require the nurses to accommodate her under the ADA
and "may also seek damages for two years of suffering
without home care." Jones also reportedly has a
crippling case of rheumatoid arthritis that keeps her
bedridden and severe respiratory problems that require
her to use oxygen.
IAQ
[321 Homeowners Sue for Radon Test Tampering
According to a recent press report, a Franklin Park,
Pennsylvania, couple has sued the former owners of
their home, two real estate companies and three agents,
claiming that the results of a radon test were concealed
~Irom them. When they bought the home in 1991, the
radon test they ordered apparently showed negligible
levels of radon. They later reportedly learned, "almost
by accident," that in 1990 the home was tested and
found to have levels of radon seven times higher than
the maximum level recommended by the U.S. Envi-
ronmental Protection Agency. The couple has
evidently spent nearly $12,000 installing an elaborate
system of pipes and fans, which failed to bring the
house within government standards. They reportedly
also claim that someone tampered with the 1991 test.
According to the report, critics of the "EPA's aggres-
sive radon policy" claim test results can be misleading,
can change with weather conditions and can vary from
room to room or in different parts of the same room.
Some scientists are reportedly skeptical of the EPA's
claims about dangers associated with radon, calling its
policy misguided. Tampering with radon tests is
ETS/IAQ REPORT, ISSUE 123
relatively simple because the kits must be left in the
home for several days. The results can apparently be
influenced by opening windows, moving the kit
outdoors, or covering it with plastic. See Pittsburgh
Post-Gazette, May 5, 1996.
WRONGFUL DEATH
[33] Student Dies Participating in Research Project
A press report indicates that the family of a University
of Rochester student has sued the university after the
student died from treatment received while participat-
ing in a study on smoking and air pollution. The
Monroe County Medial Examiner apparently found
that Hoi Yan Wan, 19, died from a heart attack after
eceiving a`°potentially lethal dose" of the anesthetic
lidocaine while undergoing a bronchoscopy as part of
the university study. The suit was reportedly filed on
May 1, 1996, in state supreme court in Queens. See
Newsday, May 2, 1996.
PRISONER CASES
[34] Young v. Scamahorn, 1996 WL 154471 (U.S.
Court of Appeals, Ninth Circuit) (decided
April 1, 1996)
Discounting a prisoner's claim that prison officials
transferred him in retaliation for his filing a civil rights
claim based on ETS exposure, the Ninth Circuit Court
of Appeals has dismissed the prisoner's motion for a
preliminary injunction to block the transfer. Washing-
ton state prisoner Rick Young claimed his transfer from
Walla Walla penitent~ary would interfere with his
pending lawsuit. The court found, however, that
Young could conduct adequate discovery from the
prison to which he was transferred. In transferring
Young, prison officials apparently violated a temporary
restraining order intended to prevent the transfer until
the U.S. district court ruled on Young's motion for
preliminary injunction. The appeals court decided that
it cannot review that issue until a final judgment is
entered in the case.
SHB
