Tobacco Documents Online

SHOOK, HARDY& BACON REPORT ON RECENT ETS AND IAQ DEVELOPMENTS - August 2'7, 1993 N ~ SHB C11

REPORT ON RECENT ETS AND IAQ DEVELOPMENTS - IN THIS ISSUE - IN! THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS On August 6, 1993, the last day Congress was in session prior to its summer recess, four bills were intro- duced that relate to ETS and IAQ issues: • H.R' 2919Indoor Air Qualiry Act of 1993, p. I. • H.R' 2985 Safe Cabin Air Quality Act of 1993, p. I. • H.R' 2910 Risk Communication Act of 1993, p. 3. • HR' 2937 Occupational Safety and Health Reform Act of 1993, p. 4. The 103d Congress is expected to reconvene on September 9. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS • Defendants respond to the complaint in Dunn, p. 7.. • Plaintiff files opening appeal brief in MnKinney, p. 8; ETS/IAQ LITIGATION NOT INVOLVING CiGARETTE MANUFACTURERS • Lung cancer workers' compensation claim iss decided in Hawaii, p. 8. • Justice Department declines to review Emery ADA claim for access to nightclub; Emery files new complaint seeking access to state government offices, p. 9. • Latest activities in Howell class action against the carpet industry, p. 11. ISSUE 54 LEGAL ISSUES AND DEVELOPMENTS • "Environmental Tobacco Smoke, Implica- tions for the Work Place," p. 12. •"U.S; Laws that Protect Tobacco Users from Employment Discrimination," p. 12. OTHER DEVELOPMENTS/MEDIA COVERAGE r University of Texas constructs smoking shelters, p. 13. • Maryland launches cancer awareness cam~ paign, p: 14. SCIENTI'FIC/TECI-iNICAL ITEMS • Two upcoming meetings, p. 14. • "The Nicotine Content of Common Vegetables," p. 14. • "Indoor Air Quality: Exploring Policy Options to Reduce Human Exposures," p. 164 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS • Legislative activity in~Australia„Canada,. Finland, Singapore and the United King- dom„ p. 17. ETS LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS • Burswood trial in Australia ends; decision expected in mid-September,, p. 18. OTHER DEVELOPMENTS/MEDIA COVERAGE • Woodward says Australia ASH should be dissolved, p. 18: • Nordic Cancer Union hosts conference on. ETS and children, p. 19., • Thailand monks implement smoking bans, p. 19.

- TABLE OF CONTENTS - Issue 54 August 27, 1993 IN THE UNITED STATES REGULATORYAND LEGISLATIVE MATTERS 1U3D CONGRESS [1] Kennedy Introduces New IAQ Billiin House;Sena-te IAQ Bill Attracts Support from Carpet Institute .................................................................................................... .......... 1 [2] Legislation Introduced on Aircrafi IAQ ................................................................................... 1 [3] Appropriations Bill with PRO-FEDS Amendment Approved' by Senate .................................. 2 [4] Justice Ginsburg Gives Opinion About Smoking and Health .................................................. 2 U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) [5] ETS Risk Assessment Litigation: Briefing Schedule Established for Motion to Dismiss ........... 2 [G] Bill to Enhance EPA Credibility Introduced; House Subcommittee Holds Hearings on EPA Risk Assessment Policies .............................................................................. 3 [7] Audit Points to Lack of Focus and Insufficient Funding .......................................................... 3 [8] Editorial by Rep. Durbin Appears in Tobacco Control .............................................................. 3 [9] "Statisticians,Occupy Front Lines In Battle Over Passive Smoking," Jl Bishop, Wall StrcetJourna4 'July 28, 1993 ............................................................................ 4 U.S: OCCUPATIONAL SAFETY AND HEALTH AGENCY(OSHA)~ [10] House Republicans Introduce OSHA Reform Legislation ....................................................... 4 [11] Task Force Ready to Forward Reporron Rcform Legislation ..................................................5 [12] Unions Seek TB Workplace Standard ..................................................................................... 5 [131 Court Holds Hearing in Case Againso Maryland OSHA ......................................................... 9 STATE. AND LoCAL GoVERNMENTs [14] Florida Mall Seeks Hearing on Smoking Ban ..........................................................................,6 [151 ETS-Relatcd~ Sute and Local Legislative Activities .............................................................•..-•.6 ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [16] Dunn: Defendants Respond to Complaint .............................................................................. 7 [17] McKinnay:,PlaintiffFilts Opening Appeal Bricf ....................................................................... 8 [18] Voth: Wrinof'Mandamus Filed ................................................................................................,8 ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS WORICPLACE:'. WORKERS' COMPENSATION[1911 Imamura v. City d County ofHonolulu, Case No. 29208149 (Hawaii Department of Labor and Industrial Relations, Disability Compensation Division) (decided March 12, 1993) ..............._......................................................................._............ .. 8 AMERIC.ANS.VVITH DISABILITIES ACT (ADA). [20] Emery v. Caravan ofDrramt(U:S. Department of Justice) (filed April 12, 1993) ................ 9 RESIDENTIAL.EXPOSURE - ADUI.Ts [21] Billing v. TaylorManagrtncnt, Inc. (Circuit Court, Chesapeake County„ Virginia) (decided August 3, 1993) .................................................................................................... .... 9 MENTAL HEALTH1 FACILITY: RIGHT TO SMOKE [22] Warren v. DcpartmantofMental'Health(Middlesex Superior Court, Connecticut) (filed July21, 11993) ..............................................................................•--•---............. ....._..._....9 WoRIQ'IACE: WRONGFUL TERMINATION [23] Ellir v. Gelton's Markets, 1993 U.S. App. LEXIS 20195 (U! S, Court of Appeals, Ninth Circuit)' (decided July 29, 1993) ................................................................................. 10 WORIQ'U+CE: MuLTIPLE CHEMICAL SENsITNITY[24] .Shelson v.' Shalala; 1993 U.S. Dist. LEXIS 1Q448 (U.S. Districo Court, Northern District. Illinois„Eastern Division) (decided July 27, 1993) ................................... 10 WoRKPUCE: COLIEGTIVEBARGAINING~ [25] YHA Inc. v. Narionallabor Relationt Board 1993 U.S. App. LE)QS 20396 (U.S. Courn of Appealt, Sixth Circuit) (decided August 1' 1, 1993) ........................................ 10 [26] United Paptrurorkrri Int7 [9nion-lacal286 v. H,S. Crocker Co., Inc., 1993 UiS. Dist. LEXIS 11432 (U.S. District Court. Eastern District, Pennsylvania): (decided August 13, 1993) .................................................................................................... 11

Contents Continued, Issue 54 PRISONER CASES [27] Hunt v. Reynoldr, 1993 U.S. App. I_EXIS 20701 (U.S. Court ofAppeals, Sixth Circuit) (decided August 13, 1993) .................................................................................................... 11 [28] Smith v. Scott, 1993 U.S. App. LEXIS 20796 (U.S. Court of Appcals, Sixth Circuit), (decided August 16, 1993) .................................................................................................... 1 I IAQ:'. CARPET EM:ISSIONS~ [29], Howell v. Shaw Industries, Inc, 93-CV-2068 (U.S. DistricrCourt, Eastern District, Pennsylvania) (filed April 19, 1993) ...................................................................................... 11 LEGAL ISSUES AND DEVELOPMENTS .................... 1 [301'. Tobacco Products Liability Project (TPLP) Announces Conference .................. [31iJ'i "'No Smoking Please.' A Proposal for Recognition of Non-Smokcrs' Rights Through Tort Law," Cindy Pressman (Student Author)+ 10 NYL.S Journal ofHuman Rights595 (1993), ...................................................................................... 12 [32] "EnvironmentaliTobaccoSmoke: Implications for the Work Place ° A. Maskin, A. Connolly, and E. Noonan, Product Liability InternationaL. July 1993 ............................... 12 [33] "FederaliService Labor and Employment Law," ABA Federal Service Labor and Employment Law Committee, 8 Labor Law 495 (Summer 1992) .................................. 12 [34] I "U.S.,Laws that Protect Tobacco Users ftom Employment Discrimination," J. Malouff, J. Slade, C. Nielsen, N: Schutte, E. Lawson, Tobacco Contro4 Summer 1993 ...... 12 [35]1 Asbestos Symposium Calculates Risks ..........................................._...................................... 12 OTHER DEVELOPMENTS University'of Texas Provides Outdoor Smoking Facilities ..................................................... 13 Texas Poll Said to Support Restaurant Smoking Ban ............................................................. 13 Insurers Cut Rates for Employers with Nonsmoking Policies ................................................ 13 Berkeley Businessman Proposes "Smoke-easy"'to Counter Restaurant Smoking Bans ........... 13 "Going Smoke-Frce: More Malls Joining in Bans on Tobacco„" Tfie New York Times, August 2, 1993 .................................................................................... 13 [411 Media Campaign Targets ETS .............................................................................................. 14 SCIENTIFIC/TECI-INICAL ITEMS UPCOMING MEETINGS [42] "Indoor Air Quality in Asia," Beijing IntcrnationaliConfcrcncc Centre, Beijing, China, October 18-20: 1994 ....................................................................................,14 [43] "Analyzing Risks: Science, Assessment an&Management," Harvard School of Public H,calth, September 28 - October 1, 1993 ................................................................... 14 OTHER HEALTH ISSUES [44] "Univariate Genetic Analysis of Oxygen Transport Regulation in Children: The Medical College of Virginia Twin Study„" W.B. Moskowi¢, M. Ivlostelltr, J.K. Hewitt, L.JL Eaves, W.E. Nance, and R.M. Schicken„Pediatru Research 33(6): 645-648. 1993 [See Appendix A] ................................................................................ 14 ETS EXPOSURE AND MONITORING [45] "The Nicotine ContcntofCommon Vegetables," E.F. Domino, E. Hbrnbach, and T. Demana, The Lancet 329(6): 437, 1993 [See Appendix A] ......................................... 14 [46] "Maternal Smoking Induced Cotininc Levels and Genotoxicity in Second Trimester Amniotic Fluid," J. Lahdeticq K. Engstrom, K. Husgafircl~Pursiaincn, L. Nylund, H. Vainio„and'M. Sorsa, Mutation Research 300: 37-43, 1993 [See Appendix A] ................. 15 [47] "Effects of Itttcrchamber Mixing, Ventilation and Filtration on Lung Dose from Environmental Tobacco Smoke Particles," S. Miller-Leiden, A. Wadhera„ and W.W. NazarofT , Aroceedings oflrtdoorAir'93 6: 509 -514, 1993 [See Appendix A] ......... 15

Contents Continued, Issue 54 INDOOR AIR QUALITY [48]' "Assessment of Ambient Volatile Hiydrocarbons from Tobacco Smoke and from Vehide Emissions," G. Barrefors and G. Petersson, Journal ofChromatography 643: 71-76, 1993 [See Appendix A] ...................................................................................... 15 [49] 1 "'Mucosallrritation and Thermal Comfort Among Occupants of an OfFiee Building;" H.I. Hall, B.P. L.eaderer, W.S. Cain, and A.T. Fidler,,Environtnrnt Intmtationa119: 253-259, 1993 [See Appendix A] .......................................................................................... 15 [50] "Effects of Restrictive Smoking Policies on Indoor Air Quality and Sick Building Syndrome: A Study of 27 Air-Conditioned Offices," A. Hedgc„W:A. Erickson, and G. Rubin, Proceedings oflndoorAir 93 1: 517-522„ 1993 [See Appendix A] I .................. 15 [51] Letters to the Editor Regarding,"The Effect of Varying Lcvels of Outd'oor-Air Supply on the Symptoms of Sick Building Syndrome," R. Menzies, R.,Tamblyn, J.-P. Fannt, J. Hanley, F. Nunes„and R. Tamblyn, - 1Vtw EngfandJournal ofMrdiciret 328: 821-827. 1993 .......................................................... 15 [52] "Indoor Air Quality: Exploring Policy Options to Reduce Human Exposures," K. Teichman, Proceedings oflndoorAir 93 3: 3-19, 1993 [See Appendix A] .......................•-• 16 SMOIQNG POLICIES AND RELATED ISSUES [53] "The Effects of a Hospital Smoking Ban on Employee Smoking Behaviour and Participation in Different Types of Smoking Cessation Programmes," H.RL Waranch, W.K. Wohlgcmuth„D.A. Hantula, R. Goraycb, and FA. Stillman, Tob'acco Controt 2: 120-126, 1993 [See Appendix A] ............................................................. 16 IN EUROI'E & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS AuszRAl.rA ........................... [54] Senate PresidenoAskedAbout Smoking,in Parliament House .................... 17 CANADA (55] Ottawa Council Committee Recommends Study of Smoking in Outdoor FaciGtiu .............. 17 FINLAND [56] Parliament to Consider Government Proposal Restricting Smoking...................................... 17 SINGAPORE ............................................ 1 [57] Government Imposes New Restrictions on Smoking ................. UNITED KINGDOM~ [58]1 Department of Health Institutes Warning Regulations ......................................................... 17 ETS LITIGATION'INVOLVING CIGARETTE MANUFACTURERS [59] TIA v. Stephen Woodward{Supreme Court, Equity Division, New South Wales) (filed April 15, 1993), .................................................................................................... ........ 18 ETS LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS AusTRw1..IA [60] Departmcnt of Occupational Health and Safety v. Burtwood Resort (Management) Ltd. (Magistrate's Court, Perth) (filed' Dccembcr 1992): ............................................................... 18' OTHER DEVELOPMENTS AusTwalA [61] [62] [63] JAPAN [641 NoxwAv Action on Smoking and Health May bc Dissolved ................................................................ 18 New Edition of Smokefrce Dining Guide Released ............................................................... 18 Quit Week Launchedlin Launceston ..................................................................................... 19. Osaka Airpoa to Restrict Smoking ........................................................................................ 19 [65] Nordic Cancer Union to Conduct Conference on ETS and Children ................................... 19 lV THAILAND ~ [66] Monks Initiate Antismoking Campaigns ............................................................................... 19 ~ MEDIA COVERAGE JAPAN [67] "Law Stifles Antismoking Moves," Jiji Press Ticker Service, August 6, 1993 ........................... 19 ~ APPENDIJC A .................................................................................................... ............................... Anide Summaries ~ ~

AUGUST 27„ 1993 1 REPORT ON RECENT ETS AND IAQ DEVELOPMENTS IN! THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS 103D CONGRESS [1]I Kennedy Introduces New IAQBiII in House; Senate IAQ Bill Attracts Support from Carpet Institute On August 6, 1993, Representative Joseph Kennedy II' (ID-Mass.) introduced'a new indoor air quality bill (H.R. 2919) i which supersedes the bill' Kennedy introduced in April 1993. The latest proposal would require the EPA to promulgate guidelines for identifying and eliminating constituents of indoor air that are hazardous. Compliance wit;h, the guidelines would be voluntary. The EPA would also be required to disseminate public health advisories about "indoor air pollutants." There is no reference to specific "pollutant°° sources. Rather, the bill defines "indoor air hazards" as "a level of indoor air polllttants, or a condition that may result in a level of indoor air pollutants, that may be reason- ably anticipated to adverseNy affect human health." Such conditions may include inadequate ventilation, intake of contaminated' ambient air, microbial con- tamination, and' indoor chemical sources. An "indoor air pollutant" is defined as "any substance or biological organism which is emitted or otherwise enters air other than ambient air."' In a departure from IAQ legislation previously intro- duced by Representative Kennedy, the measure does not authorize the appropriation of any specific sum to carry out its mandate_ The bill Kennedy introduced in April called for $47 million in spending over five years to fund indoor air research and other projects. According to a press report, Kennedy also deleted provisions included in the previous bill that would have mandated action by agencies other than EPA. These provisions apparently were deleted to make sure the new bill would fall under the sole jurisdiction of the House Energy and Commerce Committee. The previous bill had been mired in a total of three com- mittees, none of which had'' held a hearing on the measure. For a discussion of the previously introduced Indoor Air Act of 1993 (H.R 1930), see issue 47 of this Report, May 14, 1993. Meanwhile, the Carpet and Rug Institute (CRI) reportedly has announced its full support of the Indoor Air Quality Act of 1993 pending in the Senate (S. 656). The president of CRI stated, "The Act requires that sound, peer-reviewed science be used to identify specific indoor air contaminants. Congress recognizes, as we do, that we can help consumers understand indoor air quality and how proper ventilation improves the indoor environment." The bill, which was introduced'~by Senator George Mitchell (D-Me.); was approved by the Senate Envi- ronment and Public Works Committee on July 30. See issue 53 of this Report, August 6, 1993. Essentially a research bill, the measure would require the EPA to establish a national research program to study indoor air quality and its effects on human health, and to create a plan to reduce human exposure to those constituents of indoor air that pose a health hazard. The CRI president acknowledged that carpeting can constitute "to a very small degree" an ind'oor air pollution source. He observed'~ that the carpet industry is working aggressively to reduce carpet emissions through expanded libeling and testing programs. See PR Newswire, August 16, 1993; BNA Washingzbn Inslder, August 13, 1993. > Update on carpet emiisions IAwsuit. Rem 29: [2] Legislation Introduced on Aircraft IAQ ~ ~ On August 6, 1993, Representative Jerrold Nadler (D-N.Y.): introduced the Safe Cabin Air Quality Act of 94 1993 (H.R 2985) on behalf of himself and Oregon ~ Representative Peter DeFazio (D): The bill would ~ ~ require the administrator of the FederalAviation ~ Administration to issue regulations mandating (i) ~ ~

2 ventilation providing 20 cfm of fresh air per person in commercial aircraft cabins, (ii) a change of air filters when necessary, (iii) maintenance of a minimum standard of humidity, and (iv) the monitoring of ozone levels. The bill would also require the establishment of a toll free telephone number for reporting air travel related illnesses, and a quarterly report to Congress of the number and types of calls received. In introducing the measure, N'adler observed, "Now that the flying public no longer needs to be concerned about suffering the effects of secondhand smoke on short domestic flights, the airlines are creating a new problem for their passengers by restricting the amount of fresh air inl the cabins of many new aircraft." The congressman referred to complaints by flight atten. dants and passengers about dizziness, dry eyes and contraction of contagious diseases. Nadler's bill has beenl referred to the Committee on Public Works and Transportation. According,to a press report, the Centers for Disease Control and Prevention are investigating the possible transmission of tuberculosis aboard airplanes in four. cases. In addition, the union that represents flight attendants is reportedly pushing a proposal'! that would! require OSHA to set airline cabin air quality standards. See Chicago Tribune, August 8, 1993.. [3] Appropriations Bill with PRO-FEDS Amend- ment Approved by Senate On August 3, 1993, the Senate approved the appro- priations billl (H.R. 2403) which had added Senator Frank Lautenberg's (D-N.J.) PRO-FEDS legislation by amendment. The measure was sent to a conference committee and conferees were appointed by voice vote. The matter will be considered whenl Congress recon- venes in September 1993. The PRO-FEDS legislation would restrict smoking in alll federal buildings to separately ventilated areas. Although no similar provisions are contained in the House version of the appropriations bill, the House has gone further than the Senate in restricting smoking in its own chambers and offices. Senate supporters of a government-wide ban are said to be cautiously optimis- tic that the House will go along with the amendment. See The Washington Post, August 4, 1993. ETS/IAQ REPORT, ISSUE 54 [4] Justice Ginsburg Gives Opinion About Smoking and Health According to a press report, U.S. Supreme Court Justice Ruth Bader Ginsburg was asked during her confirmation hearing before the Senate Judiciary Committee whether the Constitution requires the government to subsidize pro-smoking,campaigns to the same extent as anti-smoking campaigns. Ginsburg responded, "This is a question of safety and health, and I think the government can fund anti-smoking cam- paigns and it is not required to equally fund people who want to put their health and the health of others at risk." See Associated Press, July 23, 1993. U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) [5] ETS Risk Assessment Litigatiore Briefing Sched- ule Established for Motion to Dismiss September 20, 1993, is the current deadline for plaintiffs to respondl to the EPA's motion to dismiss, according to a briefing schedule agreed to by the parties and ordered by the court. EPA's reply brief is due on October 20. For so long as the motion to dismiss is pending and the parties' only activity in the case is the briefing of the motion, the time for EPA to reply to plaintiffs' pending Requests for Admission is stayed. EPA'smotion to dismiss, filed inlJiuly, contends that the court has no jurisdiction over the subject matter of this action.and that plaintiEfs failed to state a claiml upon which relief can be grante& See issue 52 of this Report, July 23, 1993. Plaintiffs seek a declaration that the EPA Risk Assessment on ETS is null and void. Plaintiffs charge EPA with exceeding its statutory authority in conduct- ing the risk assessment, using faulty science and improper scientific conclusions in classifying ETS as a Group A carcinogen, failing to follbw its own risk assessment guidelines and violating due process. The six plaintiffs consist of three organizations related to tobacco growers, two cigarette manufacturers, and one cigarette vending machine operator. Flue-cured Tobacco Cooperative StabiAzation Corporation, et alt v EPA, No. 6:93CV370 (U:S: District Court, Middle District, North Carolina) (filed June 22, 1993). N

AUGUST 27, 1993 [6] Bill to Enhance EPA Credibility Introduced; House Subcommittee Holds Hearings on EPA Risk Assessment Policies On August 6, 1993, Representative Carlos Moorhead (R-Cal. )1 inuoduced a measure that would require the EPA Administrator to apply a series of principles designed to assure that risk assessments are "scientifically objective and inclusive of all relevant data." The "Risk Communi- cation Act of 1993"' (H.R 2910) would apply to all risk assessments prepared under the auspices of the EPA. The "principles" to be applied require the Adminis- trator: (ii) to explicitly distinguish scientific findings from other considerations affecting the design and'& choice of regulatory strategies; (ii) to consider both positive and negative laboratory or epidemiologic data and to discuss possible reconciliation of conflicting information; and (iii) to provide an explanation where the risk assessment process involves the selection of any significant assumptions, inferences or models and to identify any policy or value judgments. The measure also provides principles for the charac- terization of risk in any risk assessment document, including a statement of the reasonable range of scientific uncertainty associated with any estimation of risk. Within two years after the date of enactment, the EPA Administrator would be required to review and revise any risk assessment already made by EPA when new information becomes available which would significantly alter prior results. The bill has been referred to the House Committees on Energy and' Commerce, and Science, Space and Technology. In other activities relating to risk assessment, a hearing was recently held before a House subcommit- tee. Witnesses reportedly suggested that EPA risk assessment policies be revised. Surveys of scientists and the media apparently revealed that the science of risk does not necessarily correlate with public perception of risk For example, scientists consider tobacco, diet, excessive exposure to sunlight, ETS and workplace chemicals to be the most potent carcinogens. The media, however, in communicating information about cancer to the public, has apparently focused upon manmade chemicals, food additives, pollution, radia- tion, pesticides and hormone treatments. According to one subcommittee witness, the failure of the media to convey expert assessments of risk to the 3 public can have broad policy implications. Althoug6 the EPA reportedly considers indoor air pollution to be among the top four environmental risks to health, the issue ranks near, the bottom of budgetary priorities. Former general counsel' to the EPA Donald Elliott stated'during the hearing that the policy agenda will not be reordered until risk communication is im- proved. He recommended that risk assessment be presented as a range, rather than as a fixed figure. Other recommendations made to the subcommittee included a proposal that an executive office develop broad policy considerations, that regulatory agencies develop the details of policy implementation and that a coordinating committee of environmental andd risk- regulated regulatory agencies be formed. See Indoor Pollution News, August 6, 1993. [7] Audit Points to Lackk of Focus and Insufficient Funding An article appearing in Government Executive dis- cusses shortcomings of the EPA that it says will not be solved by elevating it to Cabinet level status. According to an audit of the agency by a Washington-based environmental think tank, the EPA is in crisis because it has been called upon to administer too many complex laws and lacks adequate funding. Critics of the agency also observe that EPA programs have tended to develop independently, resulting in a fragmented approach to environmental issues and problems. Discussing the difficulties EPA has in keeping up with science, the article notes that its researcL and development budget has not grown adequately over the years. "EPA's scientific deficiencies also undermine its credibility," the article states, "prompting many accused polluters to sue. More than 600 lawsuits are pending against the agency." See GovernmentFxecutrve; July 11993. [8] Editorial by Rep. Durbin Appears in Tobacco Control This editorial, written by Representative Richard Durbin (D-Ill.)„excoriates the tobacco industry for what Durbin refers to as diversionary tactics, misinfor- mation campaigns and false claims regarding,stnoking and health issues. The editorial leads off with a refer- ence to the EPA Risk Assessment on ETS, which

4 Durbin says was applauded by the scientific and health communities "because its conclusions were fully supported' by the evidence." Also discussed in the editorial'iare Durbin's campaign to ban smoking on domestic air flights, the purporte& "special projects"'research conducted by the Council for Tobacco Research, Judge Sarokin's opinion~ in Haines v. Liggett Group, and a report by Bero and Glantz which appears in the same issue of Tobacco Control and which contend's that the tobacco industry has cited few peer-reviewed studies in attempting to refute the findings of the ETS risk assessment. The Bero and Glantz report is summarized in issue 53 of this R'eports August 6, 1993. Durbin is particuiarly concerned with tobacco industry daims that total indoor air quality issues must be addressed in the debate over ETS, and he states that~ the industry has argued "falsely, that a smoking,ban would be ineffective in improving air quality [on airplanesJ unless the hazards associated with other air: pollutants were addressed first." Durbin conclrides,,"Ihope the American public will recognise the pattern and put as much faith in the tobacco industry's claims about ETS as it has put in~ the industry's claims about tobacco use." See Tobacco Control, Summer 1993. Durbin is the principal sponsor of the "PRO-KIDS" smoking restriction~ legislation currently pending in the House. (H.R 710) [9] "Statisticians Occupy Front Lines Iln Battle Over Passive Smoking," J. Bishop, Wall Street four- nai, July 28, 1993 This article discusses the lawsuit filed against the EPA by tobacco interests and' analyzes the controversy over the EPA's use of a 90 percent confidence interval in its Risk Assessment on ETS. The author observes that the validity of the ETS risk assessment is of concern to those with the authority to adopt smoking policies on the state, local and even~individual levels. Scientists on both sides of the issue are quoted, and the author characterizes the coming courtroom battle as a "calcu- lator-a-calculator" confrontation where statisticians "will present a series of arcane arguments about how much these unknowns affect the study's reliabiliry."' An EPA consultant, interviewed for the artide, observes that the 95 percent confidence interval was ETSIdAQ REPORT, ISSUE 54 not used in~ the ETS risk assessment precisely because it would have hinted that passive smoking actually reduces the risk of lung cancer. Such a hint would be meaningless and confusing because, according to the consultant, it is inconceivable that breathing in smoke containing "brown cancer-causing substances" could be health. He claims "[t)he confidence interval isn't a substantive issue." The tobacco industry's focus on it "is just to confuse the public." U.S. OCCUPATIONAL SAFETY AND HEALTH AGENCY (OSH.A) [10j House Republicans Introduce OSHA Reform Legislation Citing the need to reduce unnecessary governmental interference in job safety issues, House Republicans .William Goodling (Pa.) and Harris Fawell (Ill.)) introduced their~ version of OSHA reform legislation onAugust 6, 1993. (H.R. 2937) The Republican measure, based largely on~ a proposal outlined: in May 1992 by the late Rep. Paul'i Henry (R- Mich.); would expand federal occupational'safery and health laws to cover Congress and'stateand local governments. It would also establish a single set of legal criteria for~ OSHA to consider in promulgating safety or health standards and would provide a partial exemption from OSHA inspections for those employ- ers who have an on-site compliance officer orhave an exemplary safety record. The bill would establish certain employer defenses to OSHA citations and would focus OSHA attention on the most~ hazardous industries and on those employers where most harm to employee health and safety has occurred. The bill would require OSHA to increase spending on educa- tional, training and technical assistance programs, and would require the establishment of an award program to recognize exemplary programs in occupational safety and health. House Republicans are reportedlyseeking,hearings on the measure that would be separate from hearings on the OSHA reform legislation introduced earl[er this year by House Democrats (H.R. 1280), but a Demo- cratic source has been quoted as saying that separate hearings are unlikely as a hearing on Henry's proposal was conducted during the last Congress. See BNA Daily Labor Report, August 10, 1993.

AUGUST 27, 1993 [11] Task Force Ready to Forward Report on Reform Legislation According to a press report, the Labor Department task force which has been studying proposed OSHA reform legislation (H.R. 1280, S. 575) still expects to forward its final report to Labor Secretary Robert Reich in September 1993. The task force was apparently set up following Reich's testimony before the House Education and Labor Committee in April of this year. Task force members are from several government agencies and have formed eight subgroups to review different issues raised' by the proposed legislation. Meetings to gather the opinion of interested organiza- tions were reportedly held during the summer. Some 22 sessions in all were held. According to sources within the Labor Department, it is presently undear whether the final'. report to Reich will contain specific recommenda- tions for the department's position on the legislation or whether it will present a series of flexible options for 5 OSHA reportedly acknowledged receipt of what it characterized as a petition, but has not as yet re- sponded. According to an OSHA spokesperson, a TB guidance memorandum is currently being,worked' on, but it has not been released because the agency still has no administrator. The coalition apparently sent a similar proposal to the CDC and requeste& that both CDC and OSHA immediately issue a joint advisory notice on protectionn from TB. The CDC reportedly adopted guidelines for preventing the transmission of TB in health care settings in 1990. Other groups, such as the American Nurses Associa- tion (ANA), apparently favor a different approach, i.e., extensive worker education as an immediate remedy for employees at risk of contracting TB. According to the ANA, the effectiveness of any guidelines will depend upon early detection of the disease and effective treatment. See OSHA Week, August 16, 1993. addressing the Democratic-sponsored proposals. See Daily [13] Court Holds Hearing in Case Against Maryland Report for Fxerutives; August 18; 1993. OSHA [12] Uhions Seek TB Workplace Standard Five labor unions filed a petition with OSHA on August 25, 1993, to request that the agency develop a tuberculosis standard. The unions are apparently concerned about the 20 percent increase in TB cases since 1985, which they say poses a threat to millions of employees in the workplace, particularly due to the emergence of a drug-resistant strain of TB. The safety of workers in the health care, social service and crimi- nal justice fields are apparently of greatest concern. A survey of the Centers for Disease Control and preven, tion (CDC) purportedly shows that TB has been transmitted to workers in 13 percent of all hospitals. According to a press report, the petition seeks an exposure control plan that includes engineering controls such as improved ventilation, changes in work practices, use of personal protective equipment by workers and medical surveillance such as TB testing. See Associated Press, August 25, 1993. An outline for a proposed standard to protect em- ployees from tuberculosis in the workplace, developed by the union coalition, was previously sent to OSHA on December 21, 1992. The plan apparently indudes much of California's proposed workplace TB standard. At a hearing on pre-trial motions held on August 20, 1993, Circuit Court Judge William McCullough reportedly indicate& from the bench that he was indined to dismiss this action, inwhich employees of three Maryland business establishments seek to force the Maryland Occupational Safety and Health Agency (MOSHA)! to ban smoking in private workplaces. However, the judge did not issue a ruling on the merits of the defendants' motion for summary judgment, saying he would take it under advisement. He di& rule, however, against a request to join thelawsuit that had been filed anonymously by racetrack employees. The judge apparently agreed with the assistant attorney general who argued that racetracks and business offices present "two different cases." See Prince George's Journa4 August 23, 1993. The named plaintiff in the case, Albert Ertel, works for General Electric in Rockville. GE offices are now smoke- free under an order issued by the corporation in January 1993, but Ertel apparently argues that his employer should be fined because it previously exposed workers to a "recognized hazard." The unnamed plaintifis, whose attempts to intervene were denied, reportedly work for Rosecroft Raceway and Laurd Race Course. Spokesper- sons for those establishments had said that they are