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SHOOK, HARDY& BACON REPORT ON RECENT ETS AND IAQ DEVELOPMENTS October 8, 1993 SHB

REPORT ON RECENT ETS AND lAQ DEVELOPMENTS - IN THIS ISSUE - IN THE UNITED STATES REGULATORI` AND LEGISLATIVE MATTERS • PRO-KIDS legislation amend'ed'to HHS appropriations bill, p. 1. • PRO-FEDS amendment stricken from Treasury appropriations bill by conference committee, p. 1. • Court d'enies DOL's motion to hold ASH v. OSHA case in abeyance in, p.2. • President Clinton issues executive order on regulatory review,, p. 3. ETS-RELATED LITIGATION AGAINST CIGARETTE MANL'FACTURERS • Depositions of senior executives are sched- uled in Broin, p: 7. • Defendants file motions to dismiss in Vorh; p. 8. ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MA'NUFACTURERS. • Motion for summary judgment is decided' in favor of defendant in Harmer, p: 8. • U.S. Supreme Court denies petition for writ of certiorari in Crump, p. 9. • California family court sets January hearing on visitation battle involving ETS daims, p. 9. LEGAL ISSUES AND DEVELOPMENTS • "Study Examines Opinions, Actions on Smoking Policy;" p. 10. OTHER DEVELOPMENTS/MEDIA COVERAGE • Smoking dispute in restaurant ends in shooting, p. 11. • Coalition forms to advance "sound science," p. 11. ISSUE 57 •"Where There's Smoke There's Fire: Law. Firms Get Tough on Smoking," p. 12. SCIENTIFICITECHNICAL ITEMS • Calendar of upcoming scientific meetings is appended! to this Report, as Appendix B. • "Epidemiological Studies Relating,Famil~~~ History of Lung Cancer," p. 12'. • "Environment and Well-Being Before and Following Smoking Ban in Office B'uild- ings," p. 13. •"Key Issues in Carcinogen Risk Assessment: Guidelines„Society for Risk Analysis,"'p. 114. IN!EUROPE & AROUND THE WORLD REGULATORI' AND LEGISLATI\''E MA7TERS • Legislative acoivity in Australia, Austria, Canada and the United Kingdom begins on p. 14. LEGAL ISSUES AND: DEVELOPMENTS • Canadian Supreme Couro hears argument on application of cigarette companies' challenge to tobacco act, p. 16. OTHER DEVELOPMENTS/'MED1A COVERAGE • Researchers in Sweden claim more women suffer from "Sick Building Syndrome" than men, p. 16. • "Health Fascists Hide Behind Smokescreen," p. 17. •"Who's Sleeping in Your Bed?" p. 18..

- TABLE OF CONTENTS - Issue 57 October 8, 1993 IN TIiE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS 103D CONGRESS [1] [2) PRO-KIDS Bill Added to HHS Appropriations Measure ........................................................ ]i Conferees Strike PRO-FEDS Amendment to Treasury Appropriations Bill ........... ................. ll U.S.OCCUPATI.ONAL SAFETY~ AND HEALTH ADMINISTRATION (OSHA)', [3] [4] [5] [6] ASH v. OSHA:, Court Denies Motion to Hold Case in Abeyance ........................................... 2 Court Dismisses Suit Against Maryland OSHA ...................................................................... 2 Reform Legisl6tion Hearings Elicit IAQ Testimony ................................................................ 2 Predictions Made About Workplace Smoking Stand'ard' .......................................................... 3 WHITE HOUSE - [7] [8] New Executive Order Focuses on,R'egulhtory Planning and Review ........................................ 3 Proposed Cigarette Tax Seen as Benefit for Nonsmokers ......................................................... 3 U.S. ENVIRONMENTAL PROTECTION', A.GENCY' (EPA). [9] ETSRiskAssasment Litigation: Washington Legal Foundation Tenders Amicus Brief in [10]1 Supporo of Plaintiffs, .................................................................................................... ............ 4 Controversy Mounts,Over EPA Cabinet Elevation Bill ........................................................... 4 [ 1' ]i]'. EPA Fails to Address Residual Effects of Fugitive Pcrc Emissions ............................................ 5 [12)' Anderson Carpet Studies NonReplicatcd' ................................................................................ 5 STATE AND. LOCAL GOYERNMENTS[13) Assessments of Chemical Risk to be Pcer-Rcvie.ved'in California ............................................ 5 [14] PYivacv Legislation .................................................................................................... ............... 5 [151 ETS-Related'I State and Local Lcgislation .................................................................................6 ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [16] Broin: Depositions of Senior Executives Scheduled ................................................................. 7 [17) Butler: Deposition of Plaintiff Ava Dean Butler Nioticed ........................................................ 7 [18] Dunn: Responses to Defcndants' Dispositive Motions Filed ................................................... 8' [191 Voth.• Motions to Dismiss Filed ...........................................................•.--..--°--.---................... 8 ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS AMERICANS WITH DISABILITIES ACT (ADA.)', [20] Harmer v. Virginia Electric and Pown Co. (U.S. District Court, Eastern District, Virginia) (decided September 20, 1993) ................................................................................................. 8 RESIDENTIAL EXPOSURE:. CHILD~CUSTODY~ [21) Harkness v. Henderson (Family Court, Contra Costa County, California)'(]anuary hearing, scheduled) .................... .................................................... ....................................................... 9 GOVERNMENT BUILDING EXPOSURE [I22] Crump v.,Departmrnt ofHnaltb and Human Services, No. 93-265 (U.S. Supreme Court) (certiorari denied Octoben4, 1993) .................................---.°-.---.............................................9 PRISONER'CAS.E [23] Rogers v. Romrn, 93'-CV-1876 (U.S. District Court, Denver„Colorado) (fil'ad September 8, 1993) .................................................................................................... ..............................9 WORKPLACE: I.AQ/HANDICAf' DISCRIMINATION[24) hlciltueil'v: Mount Sinai Flospital, 11993 WL 300026 (U.S. District Court, Southern District, New York) (decided August 3, 1993) ......--.............................................................. 10 WORIQ'LACE:IVtULT1PLE CHEMICAL SENSITIVITY~ [25] Conradl v. Mt. Carmel School, 1993 WL 361221 (Wisconsin Labor andlnd'ustry Review Commission) (decided August 13, 1993)' .............................................................................. 10. LEGAL ISSUES AND DEVELOPMENTS [26]1 "Study Examines Opinions, Actions on Smoking Polic*y:" BNA Daily Labor Report. September 23, 1993 ..................................................................................... ................... 110 [27] "Environment Smoke Scream," T.H. Holt, The Washington Times, September 21, 1993'...... 1!1

Contents Continued, Issue 57 OTHER DEVELOPMENTS [28] Restaurant Smoking Dispute Ends in Killing ........................................••••-•••.• ...................... 1 1 [29] Coalition to Advance "Sound Sciencr" .................................................................................. 1 1 [30] Washington, D.C., March Protests Bias Against Smokers ...............................••.•-••-•••..•.••.••.. 1 1 [31] Smokers Fly Freedom Air .................................................................................................... .. 1il MEDIA COVERAGE [32J "Where There's Smoke There's Fire: Law Firms Get Tough on Smoking," S. Taylor, [33] Pientict Hall'Iaw and Business, April 19„ 11993 ...................................................................... 112' "Bar and Restaurant Workers Demand Protection from Secondhand Smoke," Business LY%irt, September 27, 1993 .................................................................................•---.............. .. 112, SCIENTIFICITECHNICt1L ITEMS UPCOMING SCIENTIFIC MEETINGS [34] Indoor Air Quality Symposium, American Industrial Hygiene Conference and Exposition, Anaheim, California„lvlay, 22, 1994 ' ...................................................................................... 12 [l35] Indoor Air Quality: An Overview for People Who Nted to Know, the American Insti- tute of Haurdous Materialk Management (AIHMM)1 several sites and dates in 1993 and 1994 ..............................•---.................-...................................---.--...... ...........--.--................... 1 , LUNG CANCER [36] "EpidcmiologicallStudies Relaning Family E-Iistory of Lung Cancer to Risk of the Disease," _ P.N. Lee, Indoor Environrnenr 2: 129-142, 1993 [Sce APP, endix A ] ...................................... 12 RESPIRATORY DISEASES AND CONDITIONS - CHILDREN [37] "Road TrafFic and Adverse Effects on Rcspirarory Health in Children,"'M_ Wjst, P. Reitmcir, S. Dold, A. Wu1ff, T. Nicolai, E.F. von Loeffelholz-Coiberg, and E. von .......... 13 Mutius, British Medical Journal307: 596-600, 1993 [Sec Appendix A] ...................... ETS EXPOSURE AND MONITORING [38] "Estimation of ETS Rctcntion in Volunteers from Measurements of Exhaled Smoke Composition," A. Black, J.J. McAughcy, D.A. K'night, C.JI Dickens, and J.C. Strong, Proceedings oflndoorAir'93 3: 47-46, 1993 [See Appendix A] .............................................. 13 [391I "Measurement of Exposure to Environmental Tobacco Smoke in Pregnant Womcn Using Qucstionnairc, Personal Monitor and'Urine Cotinine: A Problem in Exposure Moniior- ing," T.Z. O'Connor,$'.P. Leaderer, T. Holford,and'M_B: Bracken, Proceedings ofIndoor Air'93 3: 373-378 [See Appendix A] ................................................................................... 13 INDOOR AIR QUALITY' [401 "Environment and Well-Being Before and'Following Stnoking Ban in Office Building,s.'" 1. Broder, C. Pilger, and P. Corey;, Canadian Journal ofPublicHealth 84(4): 254-258~ 1993 [See Appendix A] .................................................................................................... ..... 113 [4'1] "The Pollutant Control Ihdex: A New Method of Characterizing,Ventilation in Commer- eial Buildings„"'W.J. Fisk, D. Faulkner, and A-T:,I-iodgson. Proceedings oflrrdoorAir'93' 5: 9=14, 1993 [See Appendix A]l .....................................................................---...........---..... 13 [421 "Varying Ventilation Conditions to Provide a More Complete Assessment of Building HVAC Operation and Indoor Air Quality," R. Menzies, R.M.,Tambiyn, F. Nunes, J. Leduc, J, Pasztor, and R.T. Tamblyn, Proceedings oflndnorArr'93 6:, 55]i-556, 1993 [See Appendix A] ...............................................................-•--................................ .-°........... 13 [43] "Thr Effect of ETS and'Other Combustion Products on the Indoor Concentration Levels of Radon Progeny and Activity Size Spectrum," L. Morawska and M.,)amriska. Proceedings oflndoorAir'93 4: 533-538, 1993 [See Appendix A] ............................................................ 14 [44] "Indoor Concentrations of Polycyclic Aromatic Hydrocarbons in California Residences and Their Relationship to Combustion Source Use," L. Sheldon, A. Clayton, R. Pcrritt, D.A. Wliitaker, and J. Keever, Procttdings oflndoorAir'93 3: 29-34, 1993 [See Appendix A]I...... 14 STATISTICS AND RISK ASSESSMENT [45]1 "Key Issues in Carcinogen Risk Assessment Guidelines. Society for Risk Analysis," E. Anderson, P.F. Deisler, D. McCallhm, C. St. H,ilaire, l-I'.L. Spitzcr, H. Strauss, J.D. Wilson, and R. Zimmerman, Risk Analysis 13(4): 379-3821 1993 (See Appendix A] ............ 14 [46] "An Enforceable Indoor Air Qualiry Standard for Environmental Tobacco Smoke in the Workplace," ).L. Repace and A.H. Lowrey, Risk Analysis 13(4): 463-475, 1993 [See Appendix A] .................................................................................................... ...................... 114

Contents Continued, Issue 57 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGdSLATNE MATTERS AusrxAl.Iw (47] New Public Smoking Ban Likely in Canberra ..........................................................•.••••••••••• 14' AUSTRIA [48] Compromise On Draft Tobacco Billl in Austria ..................................................................... 14 CANADA [49] Antismoking Bylaw is Passed in Durham Rcgion .................................................................• 14 [50] Health Agencies Plan to Picket NDP Caucus .......................... .......... .............................. 15 - UNITED KINGDOM [51i) HEA Wants Teachers,to Ser Nonsmoking Example .............................................................. 1 5 ETS-RELPiTED LITIGATION INVOLVING CIGARETTE MANUFACTURERS AUSTRALIA [52]1 TIAI v. Sttphrn Woodward (Supreme Court, Equity Division„NLw South Wales) (filed April 15, 1923, tried September 6-7, 1993) ........................................................................... 15 LEGAL ISSUES AND DEVELOPMENTS AL'STRALIra[53] Legal Publication Focuses on Tobacco Litigation................................................................... 15 CANADA. [54] Supreme Court Hears Argument on Application for Injunctive Rclicf ................................... 16 UNITED KINGDOM~ [55] Pubs Urged to Go Smoke Free .............................................................................................. 16 OTHER DEVELOPMENTS CANADA [56] KU,x,AIT [57] Northerners Surveys on Smoking Restrictions ....................................................................... 16 Smoking Banned in Radio and'~Television Station.................................................................. 116 SWEDEN [I58] Researchers Claim More Women Suffer from "Sic{: Building Syndromc" .......................... .. 116 UNITED KINGDOM [59] Welsh Couple Told They Cannot Be Foster Family .............................................................. 17 [60] ASH Provides "Breathing Space°'Campaign Materials .......................................................... 17 MEDIA COVERAGE AUSTRALIA [61] "Health Fascists Hide Behind Smokescreen," P. McGuinness„ ThrAusr.al:an, September, 22, 1993 .................................................................................................... ........................... 17 CANADA [62]1 "A Little Tolerance, Please," N. Boyd, The VanrouverSun, September 17, 1993 ................... 17' UNITEDKI-NGDOM [631 "Who's Sleeping in Your Bedt," N. Hawkcs„ The Times, September 21„1993 ........................18 Appendix A ........ .............................................................................. ................................................................ Articlt Summaries Appendix B ....................................................................................---............- -.-•--............. UpcomingScientiFc Meetings

OCTOBER 8, 1993 1 REPORT ON RECENT ETS AND 1AQ DEVELOPMENTS IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS IO3DD CONGRESS [1] PRO-KID'S Bill Added to HHS Appropriations Measure On September 28, 1993, by a vote of 95-3, the Senate amended a House appropriations bill for the Department of Health and' Human Services (H.R. 2518)1with Senator Frank Lautenberg's (D-N.JI) PRO- KIDS legislation. Lautenberg's bill would restrict smoking to separately-ventilated areas in all federally- funded facilities providing services to children under the age of 18! It would apply to health care and day care programs and would include elementary and secondary schools. During debate on the amendment, Senator Lautenberg,referred to the EPA Ri'sk Assessment on ETS and the lawsuit challenging the risk assessment. Quotations from the risk assessment were displayed on a chart. Senator Lautenberg also discussed the airline smoking ban, which he was instrumental' in enacting; and claimed that airline employees have said that cabin air quality has improved since the ban went into effect. He did acknowledge, however~, that there are "other environmental problems with indoor air on airplanes." EPA's July 1993 pamphlet, "What Parents, Decisionmakers and Building Occupants Can Do About ETS,"'was placed in the record: Additional remarks made during the debate on~ the measure follow: • Senator Lautenberg. "['Since the ETS risk assessment was released] companies, States, and localities have adopted policies to protect nonsmokers from thiss deadly carcinogen. Even four shopping malls in my State - Cherry Hill, Bridgewater Commons, Echelon, and Woodbridge Center - have gone smoke free and have attracted a lot of new custom- ers as a result of that." • Senator Wendell Ford (D-Ky.): "No one opposes protecting our children from harmful things they breathe in the air outside their homes. No one objects to that. But~ there is more in the air than tobacco. There should be equal concern about radon. We do not hear anything,about that. There should be equal concern about asbestos, formalde- hyde, lead', and other pollutants. But, no; we come in and! beat on tobacco. We need to look at the comprehensive picture of workplace air qu~alitv;not jusn smoking." • SenatorJrsseH'elms (R-N.C.): "'[T]here is no justification for the Federal Government to rusK into smoking bans based on EPA's questionable findings. EPA studies regarding tobacco are little more than antismoking diatribes in which science has been prostituted and readily ignored in order to have a: politicall'y correct result. The only thing these studies prove is EPA's willingness to sacrifice science in order to reach a predetermined ideology." • SenatorJohn Chafee (R'-R.I.): "[The ETS risk assessment] concludes that the widespread exposure to environmental tobacco smoke presents a serious and substantiallhealth risk. Secondhand! smoke not only aggravates up to one million existing cases of childhood asthma each year but increases the risk of lower respiratory tract infections such as pneumonia andlbronchitis& children are especiallyy vulnerable to the effects tobacco smoke." A conference committee now muso resolve differences in the Senate and' House versions of the appropriations bill. See BNA Daily Report for Executives, September 29, 1:993: [2], Conferees Strike PRO-FEDS Amendment to Treasury Appropriations Bill As predicted by a number of Congressmen, Senator Frank Lautenbcrg's (D-N.J.) PRO-FEDS legislation was removed from a House appropriations bill for the Treasury Depanment (H.R. 2403) by a House-Senate conference committee. The PRO-FEDS legislation (S.

2 262) would restrict smoking in all federal buildings to separately ventilated areas; it had been added to the appropriations bill by the Senate on August 3, 1993. Proponents of S. 262 have reportedly said that they will resurrect the proposal during deliberations om other legislation during this session. See Daily Labor Report, September 27, 1993; Chicago Tribune, Septemr ber 25, 1993. U.S. OCCUPATIONAL SAFETY AND HEALTH ADMI!NISTRATION' (OSHA) [3] ASH v. OSHA: Court Denies Motion to Hold Case in Abeyance The D.C. Circuit Court of Appeals has d'enied the Department of Labor's motion to hold the case in abeyance pending a decision by the Secretary as to "whether or how to regulate occupational exposure to tobacco smoke." The per curiam order, entered on September, 15, 1993, grants ASH's motion to proceed with briefing and oral argument and instructs the Clerkk to calendar the case for presentation to a merits panel. ASH filed the underlying petition for review in December 1992 seeking,an order that would require OSHA to institute a separate rulemaking to regulate ETS in the workpltice. ASH v: Department of Labor„ No, 92-1661 (U.S. Court of Appeals, D.C. Circuit). (f l'ed' December 22, 1992). [4] Court Dismisses Suit Against Maryland OSHA A trial court, judge in Prince George's County has dismissed the suit file& by Albert, Ertel against the Maryland OccupationaliSafery and Health Agency (MOSHA), to force that agency to ban smoking,in private workplaces and to fine his employer for expos- ing him to ETS in the workplace. Further details about the pre-trial hearing conducted in, the case appear in issue 54 of this Report, August 27, 1993. In granting MOSHA's motion for summary judg- ment, the court stated that the decision to cite an employer under the state occupational'l safery and health statute is a matter of discretion. MOSHA's decision not to cite the employer was adequately supported by the results of MOSHA's inspection of Ertel's workplace, in which MOSHA found no ETS/IAQ REPORT, ISSUE 57 evidence that the employer had violated the generall duty clause of the statute, the court held. Thus, the court rejected Ertel's claim that MOSHA's decision was an arbitrary abuse of discretion. The court al'so stated, in dicta; that the employer's subsequent decision to adopt a: smoke-free policy would have rendered a mandamus proceeding,moot. Ertel v, Henry Koellein, Jr.,, et al, CAL 93-00073 (Circuit Court, Prince George's County, Maryland). (decided September 16, 1993). [5] Reform Legislation Hearings Elicit IAQ Testi- mony Testifying before a House subcommittee on OSHA reform, a representative of the American Federation of Teachers (AFT)' addressed the issue of poor ind'oor air quality in schools. The hearing was held on September 28, 1'993, before the subcommittee on Labor Stan- dards, Occupational Health andlSafety regarding the Comprehensive OSHA Reform Act (H.R. 1280). Two panels of witnesses testified during the hearing; one representedl labor and the other represented industry. Darryl Alexander of AFT discussed the IAQ problems in schools caused by poor ventilation, exposures to methyl alcohol, pesticides, commercialldisinfectants and cleaners, asbestos„radon, and infectious diseases such as tuberculosis. She stated, "Indoor air quality is a critical problem for many of our schools. A require- menn to inspect the work site could identify some of the problems that contribute to poor indoor air qualit.I such as uncalibrated! controls, filters that have not been cleaned or replaced, and improperly functioning air handling units."' Alexander blamed poor IAQ in schools for asthma,, allergies and frequent respiratory infections, and she recommended passage of the reform act so that OSHA would have jurisdiction over workplaces not currentl}' subject to OSHA regulation, such as schools, public facilities and hospitals. Franklin Mirer„ Ph.D., testifying on behalf of the Uttited'~Auto Workers (UAW), also urged passage of the bill He stated, "the rulemaking provisions in this legislation will get the OSHA standards process back on track. The bill properHy adjusts the standards petition process by requiring OSHA to state reasons for noracting in response to substantial requests. Through

OCTOBER 8, 1993 all of OSHA's 23 year history, it was petitions from~ unions and the public health community which drove the positive rulemaking agenda at OSHA. ... The definition of significant risk in the OSHA Reform Bill is based on environmental legislation and permits OSHA to provide workers the same level of protection against chemicals at work that EPA is required to provide to them at home." Representative Austin Murphy (D-Pa.), who chairs the subcommittee, indicated that he expects the bill to go through lengthy markup in October or November 1993, and anticipates it will be substantialNy amend'edi [j6] Predictions Made About Workplace Smoking Standard According to am article appearing in the current issue of Occupational Health &Safety, one of the more contentious issues facing OSHA is smoking in the workplace. Charles Adkins, director~ of OSHA's health standards programs, is quoted as saying, "We're in the process of looking at various options. Options [in- clude] a standard on passive tobacco smoke alone, or doing a standard on indoor air quality that would include passive tobacco smoke. The flip side is not doing anything at all."' This option is not seen as likeNy, but Adkins also said, "We would rather do something on our schedule than have somebody mandate that we do something within an unreasonable period of time." Richard Boggs, vice president of Organization Resource Counselors Inc., a Washington, D.C.-based management consulting firm, has reportedly predicted that there will be some kind of standard restricting smoking,in the workplace. In this regard, he stated,, "I don't think there's much questiom anymore that smoking is hazardous to your health, whether it's secondary or whatever." See Occupational Health & Safety, September 1993. WHITE HOUSE [7]I New Executive Order Focuses on Regulatory Planning and Review Vowing to reform the regulatory process and make it more efficient, President Clinton has signed an execu- tive order that sets forth his Administration's regula- 3 tory philosophy andiestablishes the procedures to be followed by agencies in promulgating regulations. "We reject the 'if it moves, regulate it' approach. And we reject the idea that we can walk away from regulation entirely. We have sought a third way, consistent with the philosophy behind the Vice President's reinventing government project," the President said before he signed the order. Under the order, which was signed on September 30, 1993; the Office of Management and Budget (OMB)) plays a larger role in regulatory planning but~ is re- stricted in its ability to block specific regulations, OMB is an executive-branch agency that controls the administration of the federal bud'get and coordinates management procedures among federal departments and agencies. . President Clinton's order ealls for annual regulaton, plans developed by each federal agency in cooperation with~the OMB. The plans are to specify an agency's regulatory agenda and describe the costs and benefits that anticipated rules are expected to produce. Specifi- cally, the plan must include a "statement of the need for each such action and, if applicable, how the action will reduce risks to public health, safety, or the ena-i, ronmenty as well as how the magnitude of the risk addressed by the action relates to other risks within the jurisdiction of the agency," the order states. With respect to specific proposed regulations, the order permits the Vice President's review only at the request of a cabinet member or the OMB: Communi- cations between White House staff members and'i the public must be made in writing and put in the public record in order to be utilized in the rulemaking process. [8] Proposed Cigarette Tax Seen as Benefit for Nonsmokers President Bill Clinton has proposed adding a tax onn cigarettes as part of his health care plan, Several commentators have praised the plan as a benefit to: nonsmokers who will purportedly be exposed to less ETS if the increased cost of a pack of cigarettes reduces the number of smokers. Commenting on the proposal were: • Former Surgeon General C. Everett Koop: "A substantial cigarette tax would benefit not only the entire nation by helping to provide more accessible health care at a lower cost, but it would also benefit 202470 2535

4 particular groups; smokers would benefit because it would help them to quit; nonsmokers would benefit because the air they breathe would have less harmful smoke;... The only real losers would be the tobacco industry, which has made its profits by lying to the American people about the dangers of smoking."' See The Washington Post, September 21, 1993. • Surgeon General Joycelyn Elders "We know that children exposed to tobacco smoke are far more likely to have pneumonia or other respiratory diseases. We know that. And yet we as a govern- ment continue to subsidize the tobacco industry. And when we talk about tax on~ tobacco, we know that it costs us $2.113 in increased medical costs„and we scream when we are talking about taxing tobacco. All other industrialized countries have a higher tobacco tax than the United States, and yet we say„we']l lose our tobacco farmers." See Federal News Service, September 27, 1993. • Stanton Glantz: (responding to a remark abourt whether the new tax on cigarettes should fund antismoking efforts) "They would be absolute idiots to not include a reasonable tobacco-controlicam- paign as a component of their overall health care proposal." See ABC Lt?orld News Tonight, Septem- ber 21, 11993, U.S. EN'VIFIONN1ENTs,L PROTECTION AGENCY (EPA). [9] I ETS Risk Assessment Litigation: Washington Legal Foundation Tenders Amicus Brief in Support of Plaintiffs Washington Legal Foundation (WLF), a nonprofit public interest law and policy center, is seeking leave of court to file an amicus curiae brief in opposition to EPA's motion to dismiss. WLF filed its motion for leave on October 4, 1993; WLF's proposed brief was attached to the motion. °WLF believes that businesses who are the victims of the type of deceitful government conduct that is alleged in this case ought to~be permitted to obtain judicial review of that conduct, particularly where (as here) the conduct inarguably has a profound effect on those businesses," the organization stated in its papers. "WLF believes that denial of judicial review in the face ETS/IAQ REPORT, ISSUE 57 of those allegations would place in jeopardy the economic and'civil liberties of all individuals and businesses." The brief which the legall foundation proposes to file addresses two of the procedural issues raised in the motion~ to dismiss: (i)' whether EPA's decision to designate ETS as a Group A carcinogen constitutes "final agency action"; and (ii) whether the case is "ripe"' for review. "[EPA]'s motion to dismiss this Complaint boils down to a claim that the federal government can avoid all judicial review of official pronouncements that label an industry's product with a pejorative designation that the government allegedly knows to be false, when the government acts for the purpose of damaging that industry, when the industry does, in fact, suffer damage. Tharchurlish approach to judicial review of government action has never been the law, nor should it be," WLF asserts. On August 30, five organizations sought leave to file an amicus brief in support of EPA's motion to dismiss. The court has not yet rulpdlon that request, or on WLF's request. Plaintiffs filed their response to the motion to dismiss on September 20. EPA's reply brief, if any, is currently due om October 20 i Plaintiffs' complaint imthis case seeks a declaration that EPA's decision to designate ETS a Group A carcinogen, together with the risk assessment on which the decision is based, is unauthorized, arbitrary and capricious, violates procedures required by law, and amounts to a denial of due process. Plaintiffs also seek a permanent injunction requiring,EPA to withdraw the Group A designation and the underlying risk assess- ment. Flue-Cured Tobacco Cooperative Stabilization Corporation; et al, v. EPA, No. 6:93CV370 (U.S. District Court, Middle District, North Carolina) (filed June 22,,1993)~: [10] ConuoversyMounts Over EPA Cabinet Eleva- tion Bill According to a press report, the Clinton administra- tion has informed'the House that it opposes a risk assessment provision that has been added to the EPA Cabinet elevation bill (S. 171) by amendment. Further details regarding the bill appear in issue 47 of this Report, May 14, 1'993: The amendment would require the new Department of Environmental Protection to

OCTOBER' 8; 1993 ~ conduct risk assessments and cost-benefit analyses for all proposed regulations. The Senate approvedlthe amendment by a vote of 95-3, but House opposition led by Representative Henry Waxman (D-Cali£) has been strong and is expected to persist if the amend'r ment reaches the conference committee. Although President Clinton is reportedly strongly committed to placing,the EPA in his cabinet, he is opposed to amendments that do not address organiza- tional matters for the new department. Some congres- sional sources, however, believe that there is a great deall of support for the risk assessment amendment in light of overburdened state and local budgets, andi that Vice President Gore's "reinventing government" report, may actually provide a boost for the amendinent. See I'nsrde EPA, September 24, 1993. 1'vleanwhile, Senator John Glenn (D-Ohio), sponsor of the bill has reportedly expressed some reservations about the "new science" of risk assessment upon which every EPA regulation is relying. He apparently believes that Congress should be cautious about adopting a scientific rnethodolbgyy that has not been universally accepted. According to Glenn, the EPA Cabinet bill can be completed before the end of the year. Any additional delays can apparently be attributed to other issues before Congress, including the budget and health care. See Inside ETA October 1, 1993'. [11]' EPA Fails to Address Residual Effects of Fugitive Perc Emissions According to a press report, the EPA, in releasing its firstnational emissions standar& for hazardous air pollutants under the 1990 Clean Air Act amendrnents,, failed to address the residual effects of percholorethylene (perc) emissions on apartments and offices adjacent to d'ry cleaners. A New York study apparently found high levels of perc in the indoor air of apartments and businesses locate&above srttallidry cleaning establishments. The estimated cancer risk at those sites was reportedly as high as one in 100. The EPA's latest rule only addresses the effects of perc emissions inside dry cleaning establishments. It simply prohibits dry cleaners from buying transfer machines, consisting of washers and' dryers, when they replace their equipment as such, dry cleaning systems release more perc than dry-to-dry machines. See Indoor Pollution Niws, October 1, 11993, [12] Anderson Carpet Studies Not Replicated The EPA has reportedly found no proof, following months of study, that chemical emissions from carpet- ing cause illness or death in mice. The EPA's findings, released in September 1993, thus failed to confirm findings made earlier in the year by Massachusetts- based Anderson Laboratories., Some 50 experiments involving 250 mice apparently did not replicate the Anderson results, A professor at the University of Pittsburgli,,however, has apparently testified that mice have died during experiments he has devised. His methodology has reportedly been criticized by the EPA. See The Atlanta fournal'and Constitution;, Septem- ber 18, 1993. STATE AND LOCAL GOvERNhh4ENTS [13] Assessments of Chemical' Risk to be Peer- Reviewed' in California The Cal'tfornia Secretary for Environmental Protec- tion announced that California EPA's Office of Environmental Health HazardlAssessment (OEHHA) will establish a Science Advisory Board (SAB) of external scientists to peer review OEHHA's scientific assessments of chemical, risks. The SAB will apparently review risk assessment guidelines, risk assessment documents on specific chemicals, and''i scientific policv developed, by OEHHA. The SAB has been charged with promoting sound, risk assessment science inn regulatory decision•making and with fostering,consis- tency throughout the environmental agency. The two SAB committees formed initially will serve as the state's qualified experts under Proposition, 65~ and will l identify chemicals that may cause cancer or birth defects and are subject to the provisions of Proposition 65. Experts have been named to the committees„one of which will reportedly meet for the first time on October 25, 1993„in Sacramento. See PR' Newswire, September 24, 1993. [14] Privacy Legislation •Pennsylvania A bill introduced in March that would have prohibited employment discrimination against: persons who use lawful products moved out of the House Committee on Appropriations but, aker several' readings and