Tobacco Documents Online

01- 05- 93' 10 :53 '&2U2 219 C06'4 DOL OSH!a A, S. UNITED STATES COURT OF' APPEALSFDR THE DISTRTCT OF COLUMBIA CIRCUIT Z 01S- 0'25 ACTION ON SMOY.INC hND ) H-17ilL7.'H! (ASii) ) . ) Petitioner ) vs. t ) ) 'I'HE UNITED STATES } IDEPART_ME."J'T OF LAHOR: ? TF:E HONORABLE LYNN M. ) MARTiN, Secretazy of Labor; }. TF?E OCCUPATIONAL SAFE'1'Y ) A:?D HEALTH ADMINYSTFtATIO.•i ) No. (OSHA)t AND THE HONOR.ABLE' )~ Petition for Review DOROTHY L. STRUNK, the Acting ) Assistant Secretary of Labor ) for Occupational Safety and } Health )) Re: pondents ) ) ACTION ON SMOzCI[+IG ANO LIEaZIhI?' S 21QTI4?I FO cON32DERATION D TIIE SAME PANEL WHICH ADJUDI TED RELATED CAU S Action on Suivkii1g and Health (A9H), Petitioner, znovez that the currenL PCL1ti:JII for Review be agsigned to and considered by the :sdaie vailel, consistina of C'szief Judge Abncr j. rlixva, Judge RutZ: Bdc3es Gilisl~ury and Judge ,7ames L. 33llCKley, w; ich has heard and ctdjulie:aLcd twu Lt--lated p,--ioi cases between the same parties conc:erciiny t'•:hcs same s::bject

01- 05- 93 10:53 V202 219 6064 DOL OSHA A• S I'.1atLCi, namely Cacee No. 41-1037 and 9?-i038. The grounds in SLppo;L of this r:otion are A.q follows: i . This PCtitiorn for Review involves a request for rulemak-Ing in which a Pctition was originally filed by ASH on may 19, 1981, socking promtil.g3tion of a rule - by OSHA restricting cigarette Emoking in the workplace. Twice before, in :iy89 azid 1991, ASH. filed with this Court Petiticns to review osHF, action or inaction on, that subject matter, namely Case3 No. 89-1G5G, 91-1037 anri 91-1038. The most recent agency action is a lctter from OSHA dated October 30, 1992 in which USF-A continues to refuse or to delay regulation of the subject matt.er of thcoe cases, nr to even take the first preliminary st.ep which iE a necessary predicate tc any such regul3tion; iiamely, thc publication of a notice of proposed rulernaxing. 2. c:a~e No. 91-1038 involved an allegation of unreasonaole delay by Qu1IA which had announced a determination or. November 3D, i9so not to initiate rulemaking on environmental tobas;c:u smoke in tha workpl ace at that time, despite having had the isaue beforQ it since 1987. . 4t O1A, 023 3. It is partiuularly signifzcant t'hat the Court, on its ~ own motion, ordered nsHA to recpcnd to ASH 's allegations of ~ ~ X cc ~ ~ N

~_ 01, 05, 9a 10: 54 V202 219 e06;' DOL OSgA A- S Z020, 023 `.,'nreasonable d'elay by Uia ayenov when tizc oubject matter of this Yetition was be:ure the court in Cases No. 91-1037 and 91-1U3a. 4. Further, in iLb Oiiler dated January 29, 1992 regarding cases No. 91-1037 and 91--1036, this Court clearly contemplated that there mighi: be the need for further review and adjudication. That Order was i5sued "without prejudice to renewal ot petiti.yn2r's (ASH's) reguest in the event that OSHA unreasonably delays resolution (ir this matter following receipt of comments" to its Septeribei 20, 1991 Requeet for Information on Occupational Exposure LU Indoor Air Pollution (RFI ) . 5. Contrary to its representation to this cvurt that it would decide this matter as soon as possible after receipt of the RFi comments from the public, USHA continues to refuse or to unreasonably delay regulation of workplace smokiriy or to even take the first preliminary step which is a nec:essazy predicate to any such regulation; namely, the publication or a notice of proposed rulemaking. 6. The instant Petition for Review alleges, among oLher grounds, that more than 5 years aYter its original peLll.iUn seeking GSHA regulation of workp-Lace smoxing, and ctesYiLc 3

01i0S, 93 10:54 V2fl2 219 6064 DOL tDSgj A•S Z 021, 023 OSHA's assurances to triis Court that CSHA would proceed exHeditiously to resolve this subject matter, OSHA continues Lu unreasonably delay resolution of the issue of regulating 5moking in its workplace. 7. Adaitionally, oSHA's decision not to initiate separate rulemaking proceedings for environmental tobacco smoke, apart from its Request for Information on other indoor air pollutants, which is one of the issues in the current Petition ior Review, was also the subject of Case No. 91- 1037. 8. Theretore, the instant Petition for Review could be considered, with the most economic use of the Court's time and resources, if it were assigned to the panel which already has a rull knowledge of the prior cases, including OSHA's assurances that it would not unreasonably delay resolution of the subject matter but rather would act promptly to resolve the issue of workplace smoking. WHEREFORE ASH moves that the Court order the referral of ASH's Petition for Review of the OSHA's action and inaction which is the subject of the letter from OSHA to ASH dated October 30, 1592 to the same panel whi,ch has already heard and adjudicated Cases No. 91-1037 and 91-1038, namely Chief Judge 4

01 05 .93 10 : 51 V202 219 6064 DOL OSH:4 :1- S Z 022, 023' Ahner J. Mikva, Judge Ruth Bader Gin3burg ar.3 Judge James L. Buckicy. Rcspectfully submitted, ACTIOP ON MOKXNGAND J;FeAY.,TH % Dated: December 22, 1992 rs Ta ~ Action on Smokiliy anc3 Hecs1th (ASIi) 2013 H Street, N.W. washington, D.C. 20006 (202) 659-4310 l n F. Banzhaf III, YL(I j-• r ID 4 946681 Chief Counsel Attorney for Petitioner ~ ~ ~ ~ ~ GV 0 Q7

1 01%05, 9 3 10:55 %2202 219 3064 DOL 0SHA ?,,•S CERTIFICATG OF SFRVICF. Lj~ o2:3. 11.1 I, John F. Bai:'-haf 1T1, tlereby certify that copies of thc attac~hed Motion for Consideration by the Sa;;,e Panel, were today, December 22, 1992, served by preFaid certifi?d mail, return receint requested, upon the persons whose names and addresses are listed he3.ow: '1) ~ Wabor United States Departnent of T 2) Frances Perkins Buildinq, Room S2018 200 Constitution Avenue, NW Washington, DC 20210 The Honorable Lynn M. Martin Secretary of Labor Frances Perkins Building, Room S2018 200 Constitution Avenue, rrW Washington, DC 20210 ;3) accupata:onal Safety.and Health P.dministratinn (nSHA) 4), Frances Perkins Building, Room S2315 200 Constitution Avenue, NW Washington, DC 20210 The Honorabie Dorothy L. Strunk 5) Acting Assistant Secretary for Occupational Safety and Health Frances Perkins Building, Room S2315 200 Constitution Avenue, NW Washinqton, DC 20210 The Honorable William P. Barr Attorney General of the United States Department of Justice Main Building, Room 5111 10th Street and Constitution Avenue, 7W Washington, DC 20530 (6) The Honorable Jay B. Stephens 7) United States Attorney for the District. nf Columbia Judiciary Center - Fourth Floor 555 - 4th Street NW Washington, DC 20001 Charles_F. james, Esquire United State DepartmPnt nf Labor Office of the Solicitor 200 Constituti nn:AvarnrnP, NW Washington, DC 20210 n `/ ',,, ~~ .~, V I l;I'- ~J ohn F. Banzhaf III 2p13 H Street N l/W ~ Washir.gton~, DC 20006 (202) 659-4310 Attorney for Pctitioncr 6