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0Q; ug; 93 - 10: 4 6 'fY202' 219 6064 DpL t)SfLA A, S UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF r_•OJLIMBIA CTRCI?TT ACTION ON SMOKINC AND ) HEALTH (ASH) ) ) Petitzoner ) ) vs. ) ) THE UN;TED STATES ; DEFARTMENT OF LABOR; } THE HONORABLE LYNN M. ) 2~.ARTIh, Necretary of Y.abcrs ) THE OCCUPATIONAL SAFETY ) AND HEALTII ADMINISTRATION (OSHA); AND THE HONORABLE ) Pet4btion for Review DOROTHY L. 3TRLTNK, thc Acting ) Assistant Secretary of Labor ) luz OccuPational aeafety and ) Health ) } Respondents ) } PETYTION• (A) rOR REVIEW UNDER 2'9 USC qG55fif) Or THE~ OCCUPATYONhL SAFETY AND HEALTH ADMINISTRATION'S DETERMINATION NOT TO _I_SSUEA STANDARD REGULATYNG ENVIRONMEN'I'AL TOBACCO SMOKE ~ (E'T'S ) AS A POT 'PIAL OCCUPA ONAL CARCINOGEN ; (B) FOR REVIEW UNDER 29 USC 9GJ J(P) Or OCiiA' e_ DET RMzHATION NOT'TO INITIATE_S_EPARATE PROCEEDINGS FOR ETS APART FROM OTHE?_ '_'_INDOOR _AIR POLLUTANTW"; (C) FOR AN ORDER PURSUA2+TT TO 5 US~ §706 TO HOLD UNIaAWFUL AND SET ASl ,N; 5'UC:H UET;P:MYIdATIOUS AS ARBITFcARY, CAPRICIOL':,, A2J ABUS£ OF DISCRETION, OR OTHERWISE NOT IN ACCORDANCE WITH LAW; ANU LD?. TO COMPEL AGENCY ACTIGM UNL•AWFi.IJLLY Cr'I'rNJsELD nP.' Lti1kEASUNALiLY i)E XED INCLUDING A SPECIFIC TTAfETADLI; FO'P P'.7LELZYING OtN E'TS BY OSHA . ',~r UU2'. U23

01,05-93 10:4 6 V202 219 60:64 hOL OSHa A-S I. Petitioner, Actien on Stno}ClnS and I:ealth (ASH) which carries on its nonprofit charitabl'e activities dL. 2013 H1 Street, N.W. , Washington, D.C. 20006 herehy petitiarlb tl,e Court to review and set aside the determinations contained iii a letter dated October 30, 1992, (a copy or which is attache(J and marked Exhibit 1) by the Acting Assistant secretary ur Labor for Cccupational Safety and Heai*_th (oSHA). This leCCGr denied ASH's Petition for the issuance of a standai-dregulating environmental tobacco smoke (ETS) as a potential occupational carcinogen as outlined in the OSHA Cancer Yolicy, and also denied ASH's request that ETS be treated as an independent substance apart from oSHA's Request for Information on indoor air quality in general. II. ASH also seeks an order that the determinations not to issue a standard regulating environmental tobacco smoke (ETS) as a potential occupational carcinogen as outlined in the oSHA Cancer Policy, 29 C. F. R'. 1990. 1'01 et seq., or to even take the first preliminary step which is a necessary predicate to any such regulation (i.e., the publication of a notice_of proposed rulemaking), and also r.ot to even separate decisionmaking or, ETS from indoor air quality in general, should be set aside - --_` - pursuant to 5 USC §706 as arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. 2 zOu•3 023

01 i)s-83 1(1:-17 V2a2 219: 6-384 DOL osHU, A;s Z UUa-o=3 III. A. This petition is filed pursuant to 29 USC §655(f) which allows any person adversely affecteci by a standard or (by necessary implication) by a determination not to issue a standard, to challenge the validity of such action by filing a petition with the United States Court of Appeals for the circuit whereinsuch person resides or has a principal place of business for judicial review of such~standard. B. ASH, in relation to its request for review under 29 USC §65a(f), is adversely affected by OSHA`s determination in, inter alia, the following ways: 1. ASH, as a nonprofit charitable trust charged with safeguarding nonsmokers' rights and protecting nonsmokers' health, has been denied the benefit of a regulation pursuant to OSIiN's Cancer Policy which would protect the safety and health of its working members and other employees throughout the United States by prohibiting environmental tobacco smoke, a known carcinogen, in the workplace. 2. In refusing to issue a standard regulating ETS ~ as a potential oc-::upational carcinogen, or even to initiate ~ rulemaking on LTS, OSHA has ensured that ASH members and other N ~ enployees will be exposed unnecessarily to environmental ~ 3 ~ ~ ~ ~

011; US., 93 _ 10: 4 7'8YU1' 219 6Ud4 DOL UStiA .~, g tobacco smoke and' the toxic and carcinogenic elemen4s ai,a compounds it ccrlpr.ises and, as a result, nuraerous employees willl become ill ar.d die because of such exp--sure; in making such a deterinination OSHA has adversely affected ASti and its employed members by disregarding the substantial evidence that ETS is a patent:.al occupational carcinogen requiring regulation under the criteria set forth in OSHA's Cancer Folicy. 3_ ASH and!its members were also adversely affected by QSHA's determinatior, in that they and other employees will continue to be exposed to environmental tobacco smoke, a recognized health hazard with known carcinogenic effects, because OSHA disregarded the declared purposes of 29 USC §;651(b )~ to assure so far as possible every working man and woman in the Nation safe and healthful working conditions, the requirement of 29 USC §654 which requires every employer engaged in business affecting commerce to furnish each employee a place of employment which is free from. recognized hazards that are causing or are likely to cause death or serious physical harm, and the stated purpose of OSHA's Cancer Policy set forth at 29 C.F.C. 1490.103, namely to carry out the intent of the Occupational Safety and Health~Act of 1970, with regard to potential occupational carcinogens. 4 Z UUS, t1:3

fT1- (Gj• 53 10:,-1'i %Y2UZ 21'?S dt16Y UUL G1SHA A, S 4. ASE and its mernbers were turtrlermore advec~-ell af fected by OSHA' s deterr,lination because sucn deterrr.inat `_orn was not based on whether ETS meets the criteria tor rreCulation consistent with OSHA's Cancer Policy or, whether there was substantial scientific evidence in the recozd! considered as a whole for regulation of environmental tobacco smoKe as a potential occupational ca--cinogen, but rather on ancillary considerations. 5. ASH has also been harmed because OSHA has not complied with its representation to this Court in Cases Nc. 91-1037 and 91-1038 that it would make a determination whether and how to regulate ETS in t::a workplace as soon as possible after anaiyzing the co:rnents to its September 20, t99::, Request for Irrformation on Occupational Exposure to Indoor Air Pollutants. That failure to comply has and continues to adversely affect ASH who was the petitioner in those cases and who was granted leave by this Court to renew its request if oSHA continued to unreasonably delay resolution of this matter. lV. ASH see?cs review of CSH.Ms determinatior.s not to issue a standard regulating environmental tobacco smokle as a potential . 4~UUb 023 N occupational carcinogen and not to even initiate separate N ~ ~ 5 ~ ~ Go ~

01; 0S" 93 -_.Lt?:.18 V202 219 6064 DOL OSHA A- S - --- CL7 007,023 rulemaking or, the known ca~.ci,~;7~n apart from lgss cPr;ous indoor air pollutants on the yrUUi:ds, inter alia, t:aat! A. OSHA's retusal to regulate environmcntal tohaccn smoke as a potential occupational c.arcinogen 3hould be held unlawful and set aside as' agency acLion which is arbitrary, capricious, an abuse of discretion, c;L othel'wi3G not in accordance with the law because it is ine:onsistient with the criteria, procedures and purpose Zor reyulation of workplace carcinogens as set forth in CUSHA's Gdnuei Policy 29 C.F.R. 1.990.1011 et seq. and, most specifically, 29 C.F.R. §1990.112 which recr.zires that a substar.ce shdll be regulctcd as a Category I Pctentiali Carcinogen if, vRon scientific evaluation, the Secretary determines that Lhe substance mcots the definition of a potentiai occupational carcinogen. B. The letter dated Octoper 30, 1992 from osIIA which denies ASH's Petition for issuance of a stasLdard regulating environmental tobacco smoke as a potential occupational carcinogen, or even initiation of a rulemaking proceeding on BTS, is so totally devoid of any indicatiuii~ that OcHA scientifically evaluated the carcinogenicity of MTc a.o required by the oSHA Cancer Policy that it shculd be held unlawzul and set aside as agency act;Qn wnich is ai7b-itrary,

Oli-~05~-~93' 10: 48 %Yry02 219 6064 DOL OSHA a, S capricious, an abusE of discretion, or utherwise acccrdance with the law. not in C. The failure of OSHA to initidte a z-ulemaking proceedir,g regulating; ETS as a workplace caruinoger. should also be held unlawful and set aside as arbitrary, capriciou8, an abuse of discretion or otherwise not in acccrdanuc with the law because such~faiiure ignores and neglects the substantial research and findings by numerous members of trie sciejitific and medical community who have determined enviracuuental tobacco smoke to be carcinogenic, including among others: 1. The International Agency for Research on cancei, 2. The National Research Council or the Natioriai Academy of Sciences, 3. The U.S. Public Health Service, 4. The Environmental Protection Agency,' Z OOS 023 IThe U.~. Environmental Protection Agency (EPA) publicly announced its finding that ETS was a "known cause ot lung cancer" ac early as ,7una, 1989 and, at that time recomzaended that employers protect their employees from ETS by either "restricting smoking to ocparately ventllated areas or banning smoking from buil.dings." Then in May 1990 the EPA issued a draft health risk assessment of ETS which rQiterai-.c!r3 its prior conclusion and further found that ETS should be classified as a"Group A (known human) carcinogen." A rcvised risk asGP--sment which was released in May 1992 reinforced the conclusion that ETS is a"Graup A human carcinog,en." In rc-,,iewing both r.irafts the Science Advisory board unequivocally concurred with the EPA that ETS should be-classified as a vroup A Carcinogan. The fi na ; EPA report containing the risk assessment on ~ ".TS is due for public release in January 1993 and the designaticr. O of ETS as a Gro+_i2? t+ (known human) carcinogen is not expected tc ~ y~ change. ~ ~ ~ to f"i

_ _01-05-93 10:.39 '82U2 219 6064: DOL OSFLj .~ . S 5. The t3atlonal CanceL Znstitutc, 6. The National Inst_itute of Environnental Health sciences, 7. The Worid Kealth O~-ganization, 8. The American Medical Association, 9. The American Cancer Society, . 10. The American Lung ASSOCiation, and 11. Most signiticantly, tl•,e National Inztitutp for Occupational Safety and Health whioh found that ETS meets the criteria Uf a potential occupational carcinogen under OShA'S carcinogen policy_ D. In addition, the refusal ur osiLA to initiate a rulemaking proceeding regulating rTS in the workplacQ is unsupported by the substantial evidence preaentcd in ASH's petition and'otherwise available to OsHA. E. Further, the denial by uSHA of ASH's petition for regulation of ETS as a workplace carcinogen i,s unsupported by the substantial evidence available to oStLA which even acknowledged in its Septerber 20, 1991 RequebLL for Information that tobacco smoke has been classified as a human caroinogon by the International Agency for xesearuti on Canccr, the Gurgeon General and the EPA. a Z1YU9. u2.3

01-05,93 10:-19 V202 219 6664 DOL OSHA a S F. Failure to lnitiaLe a separate rulemakinq rrnr.eeding for ETS apart rrom the otheL- indoor air pollutants addressed in QSHA's September 20, 1991, Request for Inforn2rion on Occupational Exposure to Tnduor Air Pollutants should Also be held unlawfu], and set aslde as agency action which is arbitrary, capricious, an abuse of discrction, or otherwise not in accordance with the law in that ETS is readily distinguishable from~ the many oLLcx; sub9tanaco from a wide variety of other sources which even collectivc]:y posa health risks which are inconsequential cuutpared with cnvironmentaL tobacco smoke. Moreover, there ar~e spec'zfic criteria and procedures for the regulation of potential oooupational carcinogens set forth at 29 C. F. R. i99o. 1,03. et seq, which are distinct from--and in the event of conflict, take precedence over--the regulations that would govern many of the other non- carcinogenic substances included in oSAp,'s Regucut For Informati:on om indoor air quality in gei,eral. G. Failure to initiate separate rulemaking proceedinge for ETS apart from the other indoor air pollutdrrts should alco be found to constitute unreasonable delay because: 1. The grave dangers of ETS have been known cinca at lPas,:~ 1966 whe-i the T7ational Academy of Sciences and the U.S. Public Health ServicE botn publistied cornprehensive 9 Z010-U23

01- 0~_ 93 10: 56 '8202 219 6064 DUL OSHA A- S renortS on ETS whi(.:h c;vo-jciuded that involLni~r.v ~;tr.cking ca:lses lung cancer and' 1uii5 ;ancer deothE in nor.smckPrq. . For morG thran 5 ycare ASH has raispd the issue of tre danger o° ETS iil the workplacc with OSHA thrnucj;R for[aal petitionS ror' ru].erta7cing; and 3. b'ollowing t2ze rzczipt of cominents to its R.P-quest for Information~ on Occ:upational Expocure to Zndonr Air Pollutants, OStiA has not undertaken any rulemaY_ing activ;ity to regulate ETS in the workplaic either on ito own initiative, in response to the petition whio:;h is the subj'cot of this appaal , or the other petitions and couct actions undcrtaken by AsH tn prompt agency action, including a petition filcd by ASH on F'iebruary 26, 1992 and docketed aL 991, a petition filed by ASH on March 10, 1992 and duc:keted at 3-1030, or most sign].ficantly, in accordance witih OSYLA's reprccentations to this Court in ASH' v. USHA, Nos. 91-1037 and 01-1038 (Di.C. cir.)_ V. A. From the toregoing consiiderations it appears tY:ar OSH•A's determinations are not supported by eubstantial evidence in the record considereci a5 a whole. iu Z oai•a2a

Q1/05.9s 1(; :5G '8-'u2' 219 6ud'4 Di)L pSH.-1 A,S 13. OSHA':~- determinatioric , in tha above-:nentioned circumstances, also fail to comply with tthe standard of rreedom froru arbitwarir.coc or irrationality which deter:air,atiorrs Ly oSIIA must catisfy in r?lati~on to such quasi- legislative deu.isions. C. ASfl's Petitioxz for peviow of OSHA's det?rminations is gr ,unded also in 5 USC J^+D6 in that the circnmstances, describetd sk a, deLU,n5trate that GSHA's detArminations constitute action tha_ was unlawfullywithhsld or unrPAsonably delayed and should be set aside as arbitrary, caprinious, an abuse of discretion, ar:d otherwise not in accordanc4~ with 1aw. VI. Additional and furt.2rei gro•,znds for review will hP net forth i n the Brief to be 5ubluitted by ASH to thi.s Court. WF?ER'EFORE, Petitioner Actiors on Smokinq an3 Hcalth recrsest-.,, that the Court: 1. Review and set aside the determir:ati^n of the Acting Assistant Secretary of LaLur for occupatidnal. Safety and Health, refusing to initiate a,ry =ulemaking proceeding for environmental tobacco smoxe, muclr lesa cne ccparata anddist_nct from other indoor air polZutants; L9 01Z 0 2 3

01- 05• 93 10:51 %2202 219 606-1 DOL OSHA a,S Z 013• 02:3 2. Rzview and act aside the Aat?prminatio;l of the Acting AbSistant 3ecretary of Labor for nc'cupational Safety and Hecti i.h, refusing to issue a st-andard regulating znvironmental tobacco cmoke as a pnt.pntial occupational ca_cinogeii; or even to take the very pralinir.ary step of issuing a nvtice of propo3cd rulemaking which is a necessary predicate to arty suCh reg,ulation; and 3. Remand the matter to OSHA for further consideratioii of AaII' a Petition for regulation of envi;ronmental toLacco amokc in tho workplara, including a specific determiiiation whcther ETS is a potential oc-r.aipationa1 carcinogen under 111,e eri.teria and procedures of oSH;A' G Cancer Pnlicy; 4_ RuLtand the mattcr to OSHA for further consideration of ASH's Petition for regulatinn of environmental tobacc:o buioke in the workplace, including a specific timetable for oSIiA to comply with in regulating ETs in the workplace. 5. Grant Such turther relief a;, the Court deems just and equitable, includir1y attorney'3 £ccc and costs_ 12

01-'05%93' 10:51 %Y202 219 6064 DQL USlf~ A, S id ui4 U23' Dated: Dcccmbez 22, 1992 ACTION QN SMOP;FG A.I~D-'~TEA:~TH ,('ASH) .1 /7 ..r ,% / / ohn F. Banzhaf Act::orn on Smo',cing and 'WQalth (ASH) 2013 H;Street, N.W. Waohington, A_ C. 2MlS (202) 659-4310 Bar ID j 945581 Chief Counsel Attorneys for petitinnPr OF COt7NScLs Y.ath1cca E. S'chag, Legislative Counsel Action on 9moking and Healt.}i (ASH) l; ,

01/U:i.93 10::i11 V20'_ 219 6064 DOL OSHA A%S CE?tTI?+YCATE OF SERVICE Z U15, 02'.3 1, J ohn F. Banzhaf lY_ , hereby certify t2:aL crvpics of the attached Petition for Review, were today, December 22, 1992, served by prepaiid certified mai1, return receipt reque5ted, upon the persons whose names and addresses are listed below: (1) United States Department of Labor 2) Frances Perkins Building, Room 52018 200 Constitution Avenue, NW Washington, DC 20210 The Honorable Lynn M. Martin 3) Secretary of Labor Frances Perkins Building, Room S2018 200 Constitution Avenue, NW Washington, DC 20210 occupational Safety. and Health Administration VSHA) 4) Frances Perkins Building, Room S2315 200 Constztution Avenue, NW Washington, DC 20210 The Honorable Dorothy L. Strunk 5) Acting Assistant Secretary for Occupational Safaty and Health Frances Perkins BuIlding, Room S2315 200 Constituticn Avenue, NW Washington, DC 20210 The Honorable William P. Barr 6) Attorney General of the United States Department of Justice Main Building:, Room 5111 Zoth Street and Constitution Avenue, NW Washington, DC 20530 The Honorable Jay B. Stephens 7) United States Attorney for the District of Columbia Judiciary Center - Fourth Floor 555 - 4th Street NW Washington, DC 20001 Charles F. James, Esquire United state Department of Labor Office of the Solicitor 200 Constitution Avenue, NW Washington, DC 20210 r N 0 ,7o n7F. Banzhaf III,. ~ +'2013 H Street NW / IA Washington, DC 20 06 ~ C (202) E59-4310 ~ Go Lp Attorney for Petitioner Q ~