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r • • I oor At Presstime - High Court Deciding Fetal Protection Suit THE U.S. SUPREME Court is deciding a fetal protection case about whether a Miiwaukee-based automotive battery manufacturer itiegany discriminated against its female employees by excluding them from factory jobs that would expose them to lead. The court heard oral arguments Oct. 10 in International Union, United Automobile, Aerospace and Agr;cultural Irrplernent Workers of America, et alt v. Johnson Controls Inc., No. 89- 1215. Eight women and several unions initiated the appeal against Johnson Controls Inc. for violating Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act. The piaintiMs charge that the company's policy is used as an excuse to dis- criminate against women In trad- itionaiy maie-dominated fields. The justices' decision Is pending. INSIDE  Brief Exposnres........... 2  Capital Concerns..... ..... 3 Yerdicts & Settlements.. 7 Professional Newswire.. 8 Edited By The Environmental Law Group Of Cadwalader, IKckersham'& Taft, Washington, D.C. Published by Leader Publications I 'ollution POST TRIAL IMPRESSIONS/By Arthur Heitzer Handicap Claim Is Novel Approach to Air Case A teacher's charge that a school's air caused her disability is rejected, but ADA suits may be the wave of the future. N AUGUST, a federal jury In Wisconsin rejected the claim of a suburban ' elementary school teacher that the school district had illegally fired and failed to accomrrpdate reasonably her alleged handicap. She asserted that she developed a hyper•sensitivity In her lungs to airborne fungi, which were found present in the school. (Indoor Pollution Law RepoR, October 1990). Although exceptions to the jury's verdict were fiied, and this month, the judqe rejected motions to set aside the jury's verdict, the trial of this case does raise important questions regarding the future of such titqation, especially under the newly enacted Americans With Disabilities Act (ADA). In Byrne v. West Allis/West Milwaukee School District, 53 FEP Cases 551 & 555 (E.D. WI 1989,1990), a claim that the school district violated the Federal Rehabilitation Act of 1973, was presented to a jury, based on the argument that the public empbyer's alleged violations were done under color of state law and therefore were also actionable in a suit for damages under 42 U.S.C. Sec. Continued on Page 4 V/ANALYSIS/By William H. Ethier How Useful Is EPA Guide? The agency's updated draft of its radon manual may be inaccurate, misleading and expensive to homeowners. A T THE HEIGHT of the public's concern about potential health risks posed by Indoor radon two years ap. Congress passed the Indoor Radon Abatement Act of 1988, 15 U.S.C. Sec. 2661-2671. While the public has read only occasional newspaper reports on the issue since the passage of the act, the pressure on real estate transactions will soon return when the Environmental Protection Agency completes its new •Citizens Guide to Radon' (Indoor Pollution Law RepoR. October 1990) The EPA recently released a draft version of the guide and expects to finalize it in March. Radon is a naturally occurring radioactive gas found In almost all soils in the world. In the outside air, where it is quickly diluted, the gas and its natural radioactive decay products pose a minor threat to human health. BuiidinQs, however, Continued on Page 6

? indoor Pb&Iion Law Report - nt door Pollubon F.p/7pA•NFddEF uuRENCE S. KUIlCN Cos+Wda. MbdrrOrre a Tat w.w.w.n. D.C. aU AD oF EDRM wtiNDELL & ALC011N, JR. CaArwOa. wdwawn a Taft Nwr YOAk W.r York NIWVN H. VILLlp( Gn R.snoh kwnrto u.ooo. Dro. wILLtAY H. ETMIE R Naeonaj Auoweon ol Mofn. euAders w.r,.+ot«,. D.C. /Ollt{ST A. NAINLINE.111 Nawne a vwrwns waw.+pmn. D.C. RALMiw.HOLMEN Auooan Caxmw Naeond Assedsoon ef aw,ers ch-aoo. w. LAWRENCE T. MoYLE, JR. worr. Mbr+n a wR a+ragWo+%a Pa. wAl LsvIM d.wreh AreNmt s.r+o. cOA. cam. JAMES W. MOORMAN Ca0.W0a. W~dwonam a TaR wa.r,nomnh o.c. DAYID H. MUDARRI Urroe Staw Enwewn.nW Prouaoon Apa+cy w.u+irqun. D. C. uuRA OATMAN Puewe IiwtR Enqn.p Mn+..oo D.o.mnm a M.dm "ro+...a:. wn. orur NoeERTSOM asi..K. Fwi.., va. PROFESSOR J0/M10. sfENOLiR aw" sa10a a PNt6C FMbi+ .DINWu.... DR. dAN A.d.lTOLMfl1K ran unti«tiq sama a+ wadn. N.. N.wn ceM. KEV+N r. T=,ar1AN G.N Air T..m O1b e1 Tqwdo9y TtonN.r otd ii.puWap &ppat wawftmr+. D.C. JAMES E. MIODOt. rH.D.. F.E. MW.YwO M+eeor Ar owary oupero.x. Gob.n vNwy. Wm. fRURAhER sTUART It. wDE ~rief Exposures TapcMg Cure. The National Federation of Federal Employees (NFFE) has withdrawn Its appeal against the Environmental Protection Agency that had charged that EPA employees located at the headquarters building in Washington, D.C., had suffered adverse health effects from carpet emissions. EPRs union first filed the petition last January. On April 18. the agency njected the petition, saying there was not enough scientific evidence to require testing. But It did initiate a voluntary dialogue process Involvirq governmental and industry representatives. (lnabor Podtution Law Report, May 1990). Acooniinp to J. William Hirzy, president of the union that represents professional staff at EPA Headquarters, the suit was withdrawn because the dialogue process has been making progress. The agency has re- moved airtmost au of the carpet at the headquarters building. But the union has asked the EPA to require industry to conduct tests to find out what levels of 4-phenylcyclohexene (4-pc) - a volatile organic compound, which Is a byproduct of carpet adhesive - oouid be tolerated in carpets and still achieve an acceptable safety level In the air. He said that the only tests at EPA have been done by union scientists. However, there have been many other repoRs of 4-pc from carpet emis- sions in other locations. The appeal was withdrawn on the basis of cost without prejudice. Ac- cording to Mr. Hirzy, M the dialogue process Is not successful, the NFFE may refiie ils petition Including additional information regarding VOCs in carpet adhesives.   Lead-Filled Estimate:. Levels of lead previously considered safe are now associated with siqnificant long-term adverse health effects, according to a recent study published In the October issue of the Iimer;can Journal of Public Heslth. The articie, •I-Wat<h and Environmental Outcomes of Traditional and Modified Practices for Abatement of Residential Lead-Based Paint; ex- coriates the current methods of lead abatement in homes for taiiinp to remove lead-oontaminated house dust. Lead-containing house dust con- tributes significantly to elevated lead levels in children, according to the study, since Il can easily be Ingested by children playing close to the floor. The study recommends that a new approach to residential lead abate- menl be imptemented that should inciude: • More extensive abatement of lead-based paint on Interior and exterior surfaces using nfptacernerd, paint removal and encapsulation methods; • The reduction of iead-oontaininp house dust; • Post-abatement clearance testing of Nad-0orrtaininp dust prior to re- oooupancy: and • Evaluation of the costs and health outcomes associated with alter- native abatement practices. New Publisher Named STUART M. WISE has been named publisher of Leader Publications, the newsietter division of the New York Law Publishing Co., which publishes Indoor Pollution Law Report. Mr. Wise, a managing editor of the division since 1987 and with the company since 1980, aiso has served as ed'Ror-in- chief of Leader's Product Liabr'lity Law S Strategy. He succeeds Michael E. Lauchheimer. who died of cancer Oct. 4. Novemder 1990 H • /

0 • November 1990 fndoor Poillutbn Ltw Report 3 CAPITAL CONCERNS/By Kit ). Strauss Radon Survey: Unsafe Levels in All States Tested 0 N OCT.17, the Envirpnmentat Protedbn Agency reieased the results of its 1990 State Radon Survey. To date, 34 states have been tested In three surveys for elevated radon levels. Levels above four picocuries per liter (pCifL), the EPA-recommended action level, have been found In all of the 34 atates - in approximately one of every five homes tested. 1990 State/EPA Radon Survey STATE SCREENING LLVELS pCi/L x > 4 POTENTIAL HOMES AFFECTED NEBRASKA 54 293,000 IDAHO 20 64,000 NEVADA 10 35,000 N.CAROLINA 7 146,000 OKLAHOMA 3 36,000 S.CAROLINA 3 43,000 CALIFORNIA 2.4 247,000 LOUISIANA 0.8 12,000 HAWAII 0.4 1,700 The most receM part of the survey specifically measured radon levels In 46,596 homes In California. Hawaii, Idaho, Louisiana, Nebraska, Nevada, North Carolina, Oklahoma and South Carolina. OI those states. Nebraska had the highest radon ieveis, with 54 percent of homes screened manifestirp levels above four pCi/L. One Nebraska home contained an elevated level of 123 pCVL - the highest level measured In the study. EPA estimates that 293,000 homes could be affected In Nebraska alone. Dwellings In Idaho had the second greatest radon levels with 20 percent of the homes containing radon levels above four pCVL. Only 3 percent of the homes In South Carolina manifested levels above four pCi/L, but one of the homes there Indicated a level of 81 pCi/L, the second highest level In the nine states assessed. Hawaii, with only 0.4 percent of the homes containing levels above four pCilL, had the lowest number of homes containing elevated radon levels. Roughly 1,700 Ms. Strauss. a leQa/ assistant at Cadwalader, Widcer- sham d Taft, is the assistant editor of this newsktterr homes In Hawali may have radon iwets above four pCi! L, acoordinQ to tM atudy. The cumulative survey results for ap 34 states tested Indicate that 21 peroent of homes tested manifested elevated radon levels of more than 4 pCilL. Two percent of the homes oontained radon levels greater than 20 pCil L The averafle radon level of the homes screened was 3.3 pCi/L. Homes with unsafe levels were found in aii of the surveyed states, even In states with generally low levels. Elevated screeninp levels ranged from a low of four in 1,000 homes In Hawaii, to a high of seven of ten homes In Iowa. EPA's 1990 survey Indicates that In 15 of the states studied, more than 20 percent Ten Highest Radon of the homes screened had Screening Measurements unsafe radon Of 1990 Surveys levels. Those ' states are PAdO^ Cobrado, ,n ' sttt. Indiana, Iowa, in Nebn.k. Kansas, Maine, e1 seun+ Careuna Massachusetts, se w.he Minnesota, ~ 1di11O 52 Nebreek. New Mexico, 4e od.n° NebfaSka' Ii South CKeIInM North Dakota, u M°v.a. Ohio, 42 Mesnake Pennsytvania, Rhode Island, Wisoonsin and ANar+n.tn.na ab na mpva.nt at Aonmes in Ires. snns. Wyoming. In addition, more than 15 percent of the homes in Connecticut, Idaho, Kentucky, Missouri, Tennessee, West Virginia and Vermont contained levels above four pCi/l. Over 10 percent of the dwellings In Michigan, Nevada and Northwestern Wisconsin also manifested levels above the EPA standard. Finally, homes surveyed in Alabama, Alaska, Arizona, Catilomia, Georpia, Hawaii, Louisiana, North Carolina, Oklahoma and South Carolina contained the lowest kvela, with not more than 10 percent of the homes manifesting levels beyond EPA's recommended action level. a.r. W.ra.w t.w tV.re (RSN aG+Oii3) r pelrl,°a wr LaeOo PJ*:ws.t t i EiOhN /l.°nn. IM Yeak. Nw rirk 1oo1j. R+r, sism: twM au-Ooo. e,wo t,.°a. POianxr. ..w.m+ ot Th. w. Y.a ta vuaa.+o GWr. A Pno. Can+vsrm+. Cmyv.ft pkk°.n. N r4r+s ww+.e. saan 1L w... PwYd... la+ro+o. S. /Gsd+. aw.ri.~. qt d. aa+u. L.Ira [41111°.. Krs Qrr. Wn." [4111.r. Wpeft Carafieft MoW Gblrn. i/lal.t ebM2 dor°11~k» orme. ar.uwrn r.rw.

4 indoor Pollution Law Report Continued from Page 1 1983. Under that provision, she was potentially entitled to compensatory and punitive damages, In addition to lost back pay and reinstatement. A jury was impaneled as the chief trier of fact. The majority of handicap cases, Including those under federal law, have been tried In administrative proceedings or only to judges in federal court, and without potential entitlament to such damages. Framework Same as Title Vli's Under the ADA, which will become effective in July 1992, the term •handicap' has been replaced with 'disability' and the remedial framework will be the same as that under Title VII of the Civil Rights Act of 1964. At present, the majority of courts have heid that Title VII does not allow for compensatory or punitive damages, nor for a jury trial, although there are a few contrary holdings. Siqnificantty, the amendments as contained In the recently vetoed Civil Rights Act of 1990 would have allowed for these damages as well as for a jury trial in cases of intentional discrimination, and these amendments would have applied to cases under the ADA as well. Although Congressional support was not quile sufficient to override President Bush's veto in October, the bill is likely to be resuscitated in some form soon. In a sense, the Byrne case represents a prototype of the advantages and disadvantages of trying such cases to juries under the ADA. Thus, the unfavorable outcome for the plaintiff raises certain obvious concerns. Firat. this trial was continued through three weeks, with some Interruption. While the plaintiff was more suecessful in presenting her evidence than the defendant was, her case was compieted more than a Mr. Heltzer is a Mihvaukee sole practitioner specializin,p in Qivil rights and employment law. He rspre- ssntsd the plaintiff in the Byrne case. week before the jury deliberations. Further, counsel were only allowed 75 minutes each at the end of the trial to recount the fairly complicated law and evidence in their closing arguments. Second, it is far from clear that the jury understood the law. Indeed, opposing counsel and the judge spent considerable time attempting to determine exactly who bore the burden of proof on key elements of the case, for exampte, whether the employer could have provided reasonable accommodation for the plaintiff's condition, exactly what the factual elements were and how the specific Issues should be property defined. The resulting jury instructions were somewhat lengthy and were read once to the jury who did not receive them In writing. After considerable deliberations, the jury came back and asked for a copy of the Rehabilitation Aq, Seci. 504. This small section of the law was supplied to them, the cross- referenced definition of *handicapped' was added only on request of the jury toreperson, and ultimateiy, a concluding segment of the jury instnlctions was re-read in response to an additional request from a juror. The apparent confusion of the jury might be outweighed by a presumption that a jury would tend to be sympathetic to the piaintiff, a fifth grade school teacher employed by the defendant for some 20 years, who lost her empioyment because of her inabiNty to breathe the schooPs air, and with no indication of any wrongdoing on her part. However, the defendant Indicated that some transfer opportunities were offered and others were not pursued property. it vigorously challenged the eredbility of her treating doctor, Dr. Jordan Fink, an irqernationaiiy recognized expert on environmental contamination from building air containing the fungus, aspergillus furnigatus and other micro- organisms. An important element in most handicapidisability claims is that the November 1990 Handicap Case employer taited to ful(ill Its affirmative obligation to accommodate reasonably a handicapped Individual. However, It is not fair to assume that jurors are generally aware of such an obligation. For example, in voir dire In this case, none of the potential jurors indicxed they had ever heard of the Rehabilitation Act. The affirmative duty to socommodate Is clearly not assumed by the general populace In Wisconsin. The oourt in this case declined to charge the jury with a preliminary instruction establishing this duty, and instead followed the traditional approach of awaiting the completion of all evidence before advising the jury of the applicable legal standards. Potential for jury Confusion The potential for jury confusion, given the lack of authoritative instructions at the outset of trial, was complicated by the defendant's refusal to concede any of the ultimate factual issues, regardless of how contradictory its positions seemed to be. For exampk, the school board denied that Ms. Byrne actually had acquired any medical condition serious enough to constitute a ~handicap,' but it also argued that if her doctor were right and she really did have such a eondition, then that hypersensitivity to fairly common asperpillus micro-orpanisms disqualified her from working in so many environments, that the district could not reasonably have provided her with a safe school setting. Such a mutualy exclusive contention potentially could turn off a jury. But it is also possibie that some jurors doubted whether she realty was handicapped, even though as a matter of law, that should have been clear. (The judge declined to so Instruct the jury and also denied the request of the undersigned for leave to contact the jurors after the trial to ascertain how they actually viewed the case.) Appearances can be deceiving. • •

• • • I November 1990 lIs Reviewed Despise an absokite consensus of all medical experts (includinp those selected by the district and its workers compensation Issuer) that Ms. Byrne did acquire a hypersensitivity to airborne fungi from the school and that she should not be further exposed to significant levels of these fungi, she appeared at trial looking like a fairy normal individuai of her age and occupation, and not an obvious 'crippie.' Although potentiai jurors were asked on voir dire If they would have any difficulty following the law and finding someone to be legally 'handicapped; even If they had all of their timbs and did not have any other obvious deformity, there still may have been juror reservations on this point. Degree of Sickness Consequently, plaintiff was required to emphasize simultaneously her medical problems while at the same time indicating that the school district could have accommodated them. In most handicap cases, a valid claim requires a plaintiff who has some substaMial restrictions on his or her activities (or at least a perception or record of them), but nonetheless retains the ability to generally function In the job at issue. In attempting to steer this middle ground, there was the potential that some jurors may have discounted her claim, either because she was 'not sick enouph; or she was deemed to be 'roo sick.' This risk is probably greater In a sick building situation where the victim develops a hyper-sensitivity to some airborne micro-organism or contaminant. That Individual can function and seem to be perfectly healthy in environments where the contaminant is not present in significant amounts. But he or she must avoid other environments and it may be dUticue to predict where and when they may arise. The jury in this case may also have been reluctant to accept the opinions given by expert witnesses, even though they were not rebutted. A nationally recognized expert on sick buildings and airborne biological contaminants, Dr. Wallace Rhodes, testified that he would not want to work in the building where Ms. Byrne had been teaching because the heating ventilation (HV) system was poorly designed and maintained, and tended to suck up very substantial amounts of dust from an unpaved aawi space. Dr. Fink, also former head of a national association of allergists, testified that the gravel and dirt basement floor In her school posed a rfsk of developing and spreading potentially hazardous micro-organisms, Including those to which Ms. Byrne developed her hypersensitivity kmp disease. The defendant produced so medical witnesses to challenge this diagnosis or these conclusions. Nor did it seriously indicate that remedial suggestions to reduce the leakage of such dust into the HV system were unreasonably expensive or difficult to accomplish. Plaintiff Unemployable? Finally, the defendant did not argue that Ms. Byrne had failed to make reasonable efforts to find alternate empioyment, even though she was only able to obtain part-time employment at barely over minimum wage In the five years prior to trial. Rather, the defendant took the position that if her doctors' diapnosis was beiieved, she was probably unemployable. The defense expbited Inconsistencies in the doctors records, and alleged he wrote lwhite Nes' in letters for insurance purposes. The defense predictably dismissed Dr. Rhodes' opinions as that of a purchased litigation expert, after the fact. The plaintirtf presented evidence not only that the school had excessive dust and related hazards, but also that hitotoor POVion Law Report 5 the school principal and staff had ex- pressed concern about a high in- cidence of asthma and other respiratory conditions among students and staff, and that these symptoms often coincided with exposure to the air in the schooi. However, defendants succeeded in having some of this potential evidence barred, asserting that it was too remote in time or In specific causatan. These and other Issues were preserved and presented to the judpe in post-verdict motions, and could be grounds for a later appeal. In addition, there was potentially misleading language in the general verdict question submitted to the jury, as well as in the instructions. The Rehabilitation Act prohibits an btherwise qualified handicapped Individuar from being excluded or denied the benefits of a federally assisted program based on his or her tundicap, and it separately prohibits Viscrimination' against such a person. Defendant continuously char- acterized her claim as merely that of 'discrimination; although plaintiff argued that the failure of the district to take reasonable accommodation steps when it was first requested to do so in February 1984, resuMed in excluding her from empioyment beginning that year, and not merely when it decided to formally discharge her in the summer of 1987. Accommodations Not Met Nonetheless, the Instructions and verdict question appeared to suggest that a violation could only be found based on the 1987 termination decision. Accommodations may have hckided sealing the leaking HV sys- tem, Installing a hiQher quality fiMer and informing the plaintiff about its actions. lt is not necessarily a safe bet that a jury will follow the factual and legal nuances in a somewhat complex employment case arising out of an apparent sick building environment. In such a case, it is important for a Continued on Page 7

® 6 Umor PoiUiion Law Aeport Radon Guide Needs Work Continued from Page 1 can trap radon and cause the amount of radon in a given space to rise. EPA radon-induced lung cancer death estimates range from 5,000 to 43,000 per year. Aooordinp to EPA's figures, radon is second to smoking as the cause of more than 120,0001un0 cancer deaths in the United States each year. However, there is still debate in the scientific literature over the extent of the risk to pubiic health from levels of radon typically found b homes. The EPA appears to . d1ismiss any other study that claims different risk estimates from its own. The EPA argues that Its results are superior because its studies are based on human testing, while contrasting studies were based on animal testing. But, recent research from reputable sources such as the National Cancer Institute now also use human data. And other studies, such as papers published by the University of Kansas Medical Center, assert that in the absence of smoking, there Is no risk of lunp cancer from typicai home radon levels. Remediation May Not Be Necessary In addition to the public health debate, there Is also contrasting Information about the properties of radon gas and the dynamics of how B enters and gets trapped In buildings. This results In some serious effects for real estate transactions. For example, misinformed buyers will unwisely demand radon remediation for certain homes when none is necessary. The seller or buyer will then have to absorb up to $2,000. And this would be added to the cost of delaying the real estate cbsinp. The guide could play a critical role In this area by providing objective and accurate Information. Most buyers, owners and real estate professionals do not understand how a radon test should be oonducied, the difierence between short-term and bnp-terrn tests; the difference between a screening measurement and follow-up measurements; what the test results mean; and what remedial construction techniques. M any, should be worked Into a home to correct a problem. Frpuenty, owners and buyers inax costs for Inproper tests and unnecessary oanstnrction expenses, as well as attorney fees to review and redraft sales and lease oondracts that address the perceived risks. While the draft beQir>s with the sound advice that aii homeowners (I would add, tenants) should test for radon, the tone and content of the guide is an attempt to induce people to test for and remediate radon conditions within a home while eliminating a great deal of Mr. Ethfer is NtiQation counsel of the Natbnal Assoaation of Home Builders in WashfnQton. D.C. llto+roafbsr 1090 necessary Information that Individuals need to make rational decisions about testing and retnsdiation. The new guide also contains much less substantive Information about testing methods, the nature of health rkks, and other subjects than the 1986 quide. it rNent to, but does not explain the different types of testing methods avaiiabie. tt does not expiain what a lifetime rlsk' is, which is Important since EPA's lunp cancer death estimates are based on lifetime exposure to radon. Further, It falls to explain the difference between a short-term screening measurem.nt and fo0ow-up, bnp-term radon tests. Instead, the EPA row takes the position that judpments can be made about ilfetime health risks, based on a single two-day radon measurement. Tampering With Freedom The EPA has been accused of tampering with individuals' freedom to decide how to protect their own health. In Ks own defense, the agency asserts that the povemment has Intervened to protect people from themsetves, citing mandatory seat beM laws and smoking restrictions In public places. Yet these laws are urNiisp the radon issue. They do not protect us from ourselves as much as from harm that may befall us at the hands of others (for example, bad drivers and environmental tobacco smoke). People have a right to know about environmental risks they may face in their daily lives. The Qovernment has an obligation to provide irdorrnation to people so that they can make intetiiqent decisions about how they deal with these risks. M people are provided with adequate warnings about radon but they refuse to heed the warnings, then they must suffer the oonsequences. Adequate infonnation that the public needs to know includes at a minimum: What radon Is; how it eMers homes; why radon levels may be elevated in a particular home; how to test property for K; what the test results mean for the oaaipants' rkk to health; and, how to nxnediate the condition I they so choose. Long-Term v. Short-Term Testing The EPA's prevkws'Citizen's Ciuide to Radon• stated that one should base nn+edlation decisions on bnp-term testuq, since short-term tests cannot accurately predict average annual radon exposure. The new draft claims that although that information is accurate, the agency has been unable to convey that infomntion to the public. The evidence the EPA cites for this ataNure to oommunicate' is that despite previous government intomitation campaigns, most homeowners have not conducted bnp-term tests. The EPA's reaction to ks failure to communicate is that the inlomation was 900 aocurate' because people do not want to hear that they Continued on lopowinp page • . 0 . .

Abr+eniber, 1990 Indbor PblU1'icn Law RepoR 7 ~IPNerdicts & Settlements • Settlement Near in Kan. Radon/Consumer Case AN OUT-0F-COURT settlement Is expected h a suit fiied by the Kansas attomey general against two Florida corporations for Veceptive and unoonscionable' solicitation of a radon measurement device. Attorney General Robert T. Stephan charged that the defendants - to persuade Kansas consumers to purchase radon gas detectors by mait - intentionaNy misrepresented the health risks associated with radon, misrepresented themselves and used deceptive techniques to solicic business.. State of Kansas v. Coseciors Group Ma. et al.. D. Kan., Shawnee Cty., No. 90-CV-1126. According to the suN, the two Florida oompanies engaged In a marketing mailing about testing homes for radon gas that was deceptive. The solicitation impNed that the sender was associated with the federai povemment and that the strongly worded recommendation to test was officiaNy sanctioned. For example, the envelope stated that the addressor was the'Community Protection (Nuclear) Dept.' and it featured an eagle and the slogan 'Buy U.S. Savings i6onds' The EPA, the American Medical Association and the Surgeon General were also mentioned. The suit also charDes that the solicitation may have tinduy frighten[edJ consumers' by claiming Suggestions for EPA's Manual Contirwed from preceding page have to wait for a long-term test. Accurate Information Is the key to prudent decision- making and should never be sacrtticed. But even axurate Information can be conveyed in Ineffective ways. Here is what the public needs to know: - Radon levels fiuctuate on a seasonal, weekiy and even daily basis; and, therefore, a short-term test can give a false reading of the averape annual level in a home and Is at best only a screening measurement; • Average annual exposures determine health risk estimates: • And, the only way to get an soairate reading of the average annual level i; to conduct a long-term test. A Few Plussa i To Its credit, the proposed guide reooQnizes the differ- ence between lowest Nvabie level and iowest qvinp level in a home, stating that homeowners should be testing for radon In the lowest iNinp levels of their homes. This Is most often not the basement, but the first floor. Yet, most people conduct short-term tests in the basement of homes, even when the basement Is unfinished and there Is little prospect of long-term human exposure to radon in the basement. With a radon program designed to meet Its stated dual thal 'N the consumer falls to respond krxt»diatey (by purchasing a $23 radon gas detecto4. their health will be put at'hiph risk (by radonl:' The June 11 suit says the mailings violate the Kansas Consumer Protection Act, K.S.A. 50-626 and K.S.A. SO- 627. Since then, the businesses. have reportedly closed, but promise free radon kits to any consumers who may receive a mailing. "ft settlement will probably happen right after Thankspiving' said Mary Horsch, public Information officer for the attorney qenerat's office. It will probably require the companies to pay financial penalties and cease solicitations in Kansas, she said. goals of developing the radon Iridustry's irdrastnxxure and disseminating public information, the nation's radon problems could be solved. The EPA has gone a long way with Its programs to test the proficiency of radon testing companies and radon mitpation contractors, along with Ns educational efforts, to Improve the radon kxfustry's infrastnxture. Unfortunately, the proficiency of oommerciat radon testing laboratories has yet to be demonstrated at low levels over short-time intervais--the lype of testing on which EPA now claims people can base health risk and remediation decisions. On its seoond goal of producing public infomtation, the EPA atiN has a long way to go. Facts of Air-Handicap Case Conttnued trom Page 5 plaintiff to try to have the Issues sirnpNfied as rrx,ch as possde and to have the jury ciearty and initiaNy in-* structed about the Npai obiipations of tM empioyer. Even when the expert testimony appears to be un- animous, a/ury may dismiss N, and, as In this case, either find that the individuai is not sick enough to be truy'handicapped' or Is too sidc to be aooonxnodated easily enough. Obviousy, a jury may also be concerned with knposinp upon a school district any unclear or po- tentiaiy expensive obligations. The plaintiff may appeal the judge's refusal to set aside the jury's verdict.

'IndoorApollution • - A Roundup of Legal, Legislative and Business Developments THE UNIVERSITY of Medicine and Dentistry of New Jeraey (UMDNJ)-Robert Wood Johnson Medical School Centers for Education and Training (CET) Is offering oourses In the next year addressinp indoor air quality concerns. For additional information, contact the UMDNJ- CET registrar at (906)463-5062. ^ IAQ in Non-Industrial Buildings. Feb. 25-March 1, and June 17-21, 1991. Course on improvinp Indoor air quality In non-Industrial buildings. This five-day class is a combination of iectures, discussions and demonstrations and will Include hands-on workshops emphasizing instrument readings for chemical contaminants, flow meters for HVAC systems and microbial samplers. Participants will be Instructed to use diagnostic techniques and equipment and to develop stratepies to alleviate Indoor air quality probterns In non-industrial and public buildings. ^ Asbestos. Call UMDNJ-CET for dates. A number of asbestos training proprams will be offered at the U.S. EPA Mid-AWntic Asbestos Training Center. AS programs are sponsored by NIOSH. EPA and NIEHS. Continuing education units and certification maintenance points are available with most courses. The course selection includes: 'Asbestos Safety Training (Operations and Maintenance) for Custodial and Maintenance Personner; 'Pnx;edures and Practices for Asbestos ControP; 'Asbestos ConttractodSupenrisod Worker Retresher% 'DesiEninp Asbestos Response Actions: AHERA Project Desipner; Inspecting Buildings for Asbestos-Containinq Materials';'Manapinp Asbestos in 8uildings'; •Annuai Refresher Course for AHERA Inspectors'; •Annuai Refresher Course for AHERA Management Planners'; 'Sampnnq and Evaluating Airbome Asbestos Dust';'Airbome Asbestos Analysis and Round Robin CountiV Wortcshop'; 'Poisrued Light Microscopy For Asbestos Identification'; and 'Advanced Asbestos Analysis by Polarized Lipht Microsoopy ' ^ Lead-Based Paint. February, April and June 1991. This new course ooncems identliication and abatemeM of lead-based paint hazards. The three-<fty course will discuss the effects of lead exposure, r I.. fi.. s.nvb "ws CAeer e nwi"sNn N f+wo(!) I O +O1WIw.RinN Op c..rho era~w.w~aa' p or+.n.dd i.anr,e twr a atic o Ceent,ur I.wr "atqrt p ilr Corp"r CaunMlbr D 6rrar*nrr La. a Fi.o. O EWQ^w,e Lsmie+o N.m O Lreo. 1e62 ta. a asn.m O Maraidous YMaw a Taie TenS 0 Tn.MaAD..rnuMr O WAWhO For LrNeef 0 M•"+*erdw sr."M o wdc.i r.lprocke taw a titaL I 0 Yonh taunewtv Car FlAW a N.Y. ilw Eaar 1aw Repmt~r ~ Q P1o4x! Wbaty Law a Etft t O A.t Esat. sec a Cap.1NmL • identirication of lead-based paint hazards, state-0f-the-aR abatement procedures and various legal topics. The legal issues will focus on environmental repuiations, right-to- know regulations, state and municipal npulations, building owner and abatement contractor responsibilities and liabilities, insurance and oontract sppecification considerations and ongoing lead-based paint product naabifiy iawsuits. ^ IAQ In SclroolL Jan. 30-Feb. 1, 1991 and April 17-19. This three-day course Is aimed at school superintendents, school building managers, custodial and maintenance supervisors, board members, asbestos designated persons and environmental professionals In identifying, waiuatinp and controlling the major environmental and occupationai heatth issues affecting schools. ---------------1 use e" mupa+ d fublQEr b MooR POLWt9oM LAw RIEroIlT .tlA. en.y.r /.w of s1e5 «r ewaun ,«RIPl. «eres. 111 Ebhh Ara, lirw Ymlk /iY.10011 pooi eeasooo; 0121483-sM O PAYIENT ENCL06ED 0 BILL ME (wke d+.tl v.peU b lMder Fubiowony %W1E RWCOMPANY: AooAESS: omr: STATE a ZP: PASS THIS CfllAe'Ori TO AN INRPRESTED cotlFAGtX I -------------------------1