Tobacco Documents Online

SHOOK, HA~°ZDY& BACON REPORT ON RECENT ETS AND IAQ DEVELOPMENTS October 22, 1993 ~ ~ ~ ~ ~ ~ SHB ~ ~ ~ 0+

REPORT ON!RECENT ETS AND IAQ DEVELOPMENTS - IN THIS ISSUE - IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS • Conferees remove PRO-KIDS amendment from HHS appropriations bill; Lautenberg decries removal of PRO-FEDS and PRO- KIDS amendtnents, p. 1. • House committee submits report on Traficant bill, p. 1. • ASH invites supporters to file ETS exposure complaints with 1OSHA, p. 2. • SSPC 62 to Meet in Philadelphia Prior to. IAQ'93 Meeting, p. 5. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS  Two new cases, Benrz and! Williams;, are discussed beginning on, p. 7. • Ninth, Circuit affirms dismissal of Schultz case, p. 8. ETS AND IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS • California court, denies summaryjud'gment, in Portenier and! sets case for trial, p. 9. • Texas appeals board.denies workers' com- pensation benefits to ETS claimant who allegedly had! lung cancer, p. 9. • California court temporariNy removes child from custody of smoking mother, p. 10. • Florida appeals court invalidates city's policy of refusing to hire smokers, p. 10. OTHER DEVELOPMENTS • Massachusetts launches Tobacco Control Program, p. 13. • Freedom Air fails to attract sufficient numbers of fliers, p. 13. ISSUE 58 SCIENTIFIC/'TECHNICAL ITEMS •"O'ccupational Risk Factors for Lung Cancer Among Nonsmoking Women: A Case- Control Study in Missouri (United States)," p. 14. • "Cigarette Smoking and Sudden Infant Death Syndrome: Some Salient Points in the Debate,"' p. 16. •"Tobacco Smoke im Shopping Malls and Restaurants," p. 16. IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS • Developments in Hungary, Ireland, Malay- sia an&the United Kingdom, p. 17. LITIGATION!NbT INVOLVING CIGARETTE IVIAN U FACTURERS • In Australia, Burswood casino seeks costs of $250,000, p. 18. • Roundup of pending litigation in Australia„ p. 18. LEGAL ISSUES AND DEVELOPMENTS • Asthmatie threatens lawsuit; Australian sports organizations issue smoking restric- tions, p: 19. OTHER' DEVELOf'MENTSIMEDIA COVERAGE • British Airways, Qantas and Singapore Airlines announce smoking bans for interna- tional flights, p. 20. • "Gasping for Breath; Are Exhaust Fumes Suffocating our Children?° p; 21.

- TABLE OF CONTENTS - Issue 58 October 22, 1993 IN THE TJNITED STATES REGULATORY AND LEGISLATIVE MATTERS 103D CONGRESS [1] Conferees Remove PRO-KIDS Amendment From HHS Appropriations Bill; Lautenbcrg Decries Removal of PRO-FEDS and PRO-KIDS Amendments .............................................. 1 [2]1 Committee Submits Report on Traficant Bill .......................................................................... 1 U.S. OCCUPATIONAL SAFETY AND. HEALTH ADMINISTRATION(OSHA). [3]': ASH Invites Supporters to Filt ETS Exposure Complaints With OSHA, ............... ........................................ 3 [4] Secretary Reich Tells AFL-CIO Indoor Air Is a Priority .................. [I5] Witnesses Address Poor IAQ During OSHA Reform Hearing ...................... _........................ 3 U.S.ENVIRONMENTAL PROTECTION! AGENCY (EPA) [I6] ETS Riik'Assesrmrnt Litigation: EPA Files Motion for Leave to File Reply Brief imExccss of Page Limit and Attaches Proposed Reply Brief in Supportof Motion to Dismiss . ............... 3 [7] Confirmation Hearings Hcld!for EPA Nominees ............................................•-..-•••--•-•.•.-.--.••• 4 [8] Companion Bill lntroduced'to Streamline EPA Risk Assessment Procedures .......................... 4. [9] Top Science Advisor's Role in Jeopardy ................................... .................... ............................ , (101 Science Advisory Board Given New Role ....................................................•••-.•--••-.-.--.-.•••••-•.. 5 AS H RAE [11] SSPC 62 to Meet in Philadelphia Prior to IAQ '93 Meering ................................................... 5 STATE AND.LOCAL G~OYERNMENTS [12] Florida Publishes Changes to C1eamIndoor Act Rules ............................................................. 5 [13] Privacy Legislhtion .............................................................. ...... ..... .......... ..... ..... .... ................ . 5 [14] Other ETS-Related State and Local'Legislation ....................................................................... 6 ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS [15)I Benrz I?roSrPrisoner Case Filed in Oregon ............................................................................7 [16]1 Bluirt: Defendants'.'Responses to the Complaint to brFiied ........................ ............................ 7 (17] Broin: Depositions ofScnior Executives Taken ..............................................................••••-..---7 [18] Butlerr Deposition of Plaintiff Ava Dean Butler Postponed ..................................................... 8 [19] Dunn:,R'eply Briefs in Supporrof Defendants' Dispositive Motions to be Filed ...................... 8 [20] Schultz- Ninth Circuit Affirms Judgment in Favor of Philip Morris ........................................ 8 [21] Williams: Case Filed in Louisiana ...........................................................................---.............. 8 ETS AND lAQLITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS VIWORK7aLACE: ASSAULT AND BATTERY [22] Porrenier v. Republic Hogg Robinson (Superioo Court, Los Angeles,Counry, California)~ (filed June 6, 1991) ................... ..............................°....-...................-....-..---.......................... 9. AMERICANS WITHIIIfiABILITIES ACT (ADA) [23) Pcterson v. Utah,Dtparrmcnt ofHealth (U1S. Department of Health and Human Services) (filed July 14, 1993)', .................................................................................................... ........... 9 WORKPLACE: WORKERS'COMPENSATION [24] Appt!lantlCrosf-Rrsp, o»dtnt v. Rtspondtnr/Cross-Apprllant, 1993 WL 406384 (Texas Workers' Compensation Commission) (decided October, 1, 1993) .................. -...................... 9 WORKPLACE: IAQ [25] Babura v. SE"W Jnvrstors (Superior Court, District of ColUmbia) (filed September 14, 1990) .. 9 IAQ: CARPETEM15SIONS~ [26]' Nowd1 v. Shaw lndustrits, lr+c., 93-CV-2068 (U.S. District Court. Eastern District. Pennsylvania) (filed April 19, 1,993) ......................................................................................,1'0 CHILD CUSTODY(27] INaronc v. Tanner (Superior Court„Sacramcnto, California) (temporary custody order entercd October 13, 1993) ................................................................................................... 10~

Contents Continued, Issue 58 WORKALACE:CCAASFS INVOLVING SMOmRS'RIGHTS [28] Kurtz v. City ofNorth Miami, 1993 Fla. App. LEX]S 10307 (Court of Appeal, Third District, Florida) (decided October 12, 1993) ...............••••••••••-••--••••••••••-•••••-•••••••-••••• •Â•--•••-••• 10 HOSPITAL: PATI.ENTS'RIG~HT TO SMOKE [29) Arbogastv. Ptttrson„ 1993 Ohio App. LEXIS 4883 (Court of Appeals, Ninth Districr, Summit County„Ohio) (decided October 6, 1993), .............................................................. 1 1 PRISON: PRISONERS' RIGHT TO SMOKE [30] Prison Inmattrv. Polk County(Di'stricrCourt, Polk County, lowa) (filed September 1993)',... 11 [31] R'rynolds; Jr: v. Bucks, 1993 U.S. Dist. LEXIS 14058 (U,S. District Court, Eastern District„Ptnnsylvania) (decided October 1, 1993) ..................•...••--..••••••••.•-••..--•.••-••••••••. CASES FILED BY NbNSMOKING PRISONERS. [32] LY/ilson v. Hambrick, 1993 U.S. App. LEX1S 25454 (U.S. Court of Appeals, Sixth Circuit) (decided September 30. 1993) ..................................---.........-...-.............................. 1 1 [33] Brown v. Thornburgh„ 1993 U.S. App. LEXIS 26732 (U.S. Court of Appeals, Sixth Circuit) (decided October 12: 1993) ..................................................................................... 12 S1CKBUILDING SYNDROME [34] Klockn v. ThrAd'D Limited Pcrrnsrahip, 1993 Ohio App. LEXIS 4913 (Court of Appeals, First District, Hamilron County, Ohio)! (decided September 22, 1993) .................. 12 LEGAL ISSUES AND DEVELOPMENTS [35]1 California Bar Considers Resolution on Workplacc Smoking ................................................ l .. [36]1 "'Sick' Buildings Rarely Are, but Perceived Probl6ms Must be SolLcd,"' J. Wojcik, Business Insurance, September 13, 1993 ................................................................................. 12 [371' "Exposure to Tobacco Smoke is More Than Offensive, It is Cruel an&Unusual Punishment,"' J.S. Kinsler, Valparaiso University Law Review, 1993 ....................................... 12 OTHER DEVELOPMENTS [38] Massachusetts Launches Tobacco Control Program .............................................................. 13 [39) ASH Offers Long Distance Service to Raise Funds ...................................................•.....••...-. 13 [40) Toyota Test Markets Air Cleaner .......................................................................................... 13 [41] Freedom Air Fails to Attract Sufficient Numbers of Fliers ..................................................... 13 SCIENTIFIC/TECHNICAL ITEMS UPCOMING SCIENTIFIC MEETINGS [I42) IAQ'94: Engineering Indoor Environments, Sa Louis„Missouri„October 30-Novcmber 2, 1994: .................................................................................................... ............................. 113 (43) Eleventh ORNL Life Sciences Symposium, IhdoorAir and Human Health Revisited (Bringing Selected Advances in Medical Science to the Indoor Air Quality Community),, ' Knoxville, Tennessee, March 28-31, 1994 ............................................................................. 13 LUNG CANCER [44] "Occupational Risk Factors for Lung Cancer Among Nonsmoking Women: A Case- Control Study in Missouri (Llnited States)t" R.C. Brownson, M.C:R. Alavanja, and J.C. Chang, Cancer Causes and Conrrol4: 449=454, 1993 [See Appendix A] ................................. 14 [45] 1 "Towards Truth, Through Falsification," A. Flew, Indoor Environment 2: 125-128, 1993 [See Appendix A] .................................................................................................... ............. 14 [46] Letters to the Editor Regarding Trichopoulos, D:, Mollo, F.. Tomatis, L., Agapitos, E., Delsedime„L., Zavitsanos, X., Kalandidii A., Katsouyanni, K-, Riboli, E., and Saracci; R.,. "Active and Passive Smoking and Pathological Indicators of Lung Cancer Risk in an Autopsy Study,"' Journal ofthr Amtrican MedicalAssociation 26$: 1697-1701, 1992 ............. 14 [47] Editorial Regarding Letters to the Editor on Trichopoulos, et al.: "Smoke and Letters." D. Rennie, Journal oftheAmerican MtdicalAstociation 270(14): 1742-1743, 1993 .................••• 15 OTHER HEALTH ISSUES [48] "Risks for Premature Rupture of Amniotic Membranes," E.E. Ekwo, C.A. Gossclink, R. Woolson, and A. Moawad, lntrrnationalJournal ofEpidcmiology:22(3); 495-503,1993 [See Appendix A) .................................................................................................... ............. 15

Contents Continued, Issue 58 [49) "Cigarette Smoking and Sudden Infant Death Syndrome: Some Salient Points in the Debate," B. Haglundi Acta Paediatrica Suppl. 389: 37-39, 1993 [See Appendix A] I ............... 16 [50]! "Brea,st-Feeding and Materna]iSmoking,in the Etiology of Crohn's Disease and Ulcerative Colitis in Childhood," A. Rigas, B. Rigas, M. Glusman, Y.-Y Yen, S.J. Lan, E. Petridou, C.-C. Hsieh, and D. Trichopoulos, AnnaG ofEpidtmiology3:,387-392, 1993' [See Appendix A] .................................................................................................... .............. 16 ETS EXPOSURE AND MONITORING [5111 "Tobacco Smokc in Shopping Malls and Restaurants," G: Lofrorh, Indoor Environment 2: 173-178, 1'993 [Scc Appendix A] I .......................................................................................... 16 [52]1 Letters to the Editor Regarding "Relationship Between Environmental Tobacco Smoke Exposure and Carcinogen-Hemog]obin Adduct Levels in Nonsmokers," S.K. Hammond, J. Coughlin„P.H'. Gann, ML Paul„K. Taghizadch, P.L. Skippcr, and S.R. T.annenbaum, Journal of the Narional Cancn Inttitute 85 (6) i 474-478, 1993' ............................................... 16 INDOOR AIR QUALITY [53] "Windows and Environmental Satisfaction: A Survey Study of an Office Building," M. Boubckri and F. Haghighat, Indoor Envi.rommenr2: 164~172; 1993 [See Appendix A]..... 117 [54] "Acute Pulmonary Function Impairment in School Staff Working in a'Sick Building': A PilorStudy," M. Dahlqvist and R. Alexandersson, IndoorEnrrironment2: 179-185„1993 [See Appendix A) .................................................................................................... .............. 17 [551 "Smoking Habits, Atopy;,and'Ptevalcncc of Sick Building Syndrome Symptoms Among Office Workers in Norway," K. Lcnvik, Environmrnrlnternarional 19: 333-340';, 11993 [Sec Appendix A] .................................................................................................... ............. 17 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS HUNGARY [56] Parliament Leaves Smoking Policy Decisions to Employ,crs ................................................... 17 I RELAN D ..................°-........ _...._.......................... 1 [57] Irish Cancer Society Calls For Smoking Bans ........._. MA1AY9tA [581 New Bill Would Broaden Smoking Restrictions .....................................................--..•••••---... 17 UNITEDICINGDOM [59], Environment Minister Recommends Smoking Bans ............................................................. 18 ETSIIAQLITIGATION'NOT INVOLVING CIGARETTE MANUFACTURERS AusTRA>_.IA [60] Burswood Seeks Costs of 5250,000 ....................................................................................... 18 (611 Roundup of Pending Litigation in Australia ...................................................................•..-... 118 LEGAL ISSUES AND DEVELOPMENTS AusTRALIw [62] Asthmatic ThreatensLawsuit and Sports Organizations 1,ssurSmoking Restrictions ............. 19 [63] "Tobaceo Litigation: Impact and Future Directions," E. Arocca, fournal ofLav and Medicine, October 1993 .............................................................. .......................................... 19 CANADA [64] Court Grants Right to Appeal Decision in Challenge to Tobacco Products Control Act ....... 19 OTHER DEVELOPMENTS AusTRAL1A [65] PoIIIGauges Tolerance of7ndoor Smoking .......................................................................•.--. 20 (66) AMA President Supports Claim AbouoETS and Child Abuse ..............................................Z0 EUROPEAN. COMMUNITY [67] Europe AgainsrCancer Week: October 11-17 .......................................................................20 UNITED KINGDOM [68]! Survey Gauges Popularity of Nonsmoking Areas ................................................................... 20,

Contents Continued, Issue 58 WoRl.n A1RUNE I*TEws (69] British Airways, Qantas an&Singapore Airlines Announce Smoking Banss for International', Flights .................................................................................................... .... 20 MEDIA COVERAGE JAPAN [701 "Japan Aiming to Relinquish Smoking Title," The Nikkei R7rrk'ly; September 27, 1993 ........ 21 UNITEID KINGDOM [71) "Gasping for Breath; Are Exhaust Fumes Suffocating our Children?" The Indepr.ulenr. October 10, 1993 ........................................................................................21' APPENDIX A, .................................................................................................... ................................ Articl6 Summaries APPENDIX B .................................................................................................... .............. Upcoming Scientific Meetings APPENDIX C .................................................................................................... ............ ASH's OSHA Complhinn Form

OCTOBER 22, 1993 1 REPORT ON RECENT ETS AND IAQ DEVELOPMENTS IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS 103D, CONGRESS [1] Conferees Remove PRO-KIDS Amendment From HHS Appropriations Bill; Lautenbcrg Decries Removal of PRO-FEDS and PRO- KIDS Amendments A House-Senate conference committee has removed the PRO-KIDS amendment from the appropriations bill'i for the Department of Health an& Human Services. (H.R 2518). The amendment would have restricted smoking to separately-ventilated areas in federally- funded facilities serving children younger than 18. It had been added to the appropriations billiby the Senate on September 28', 1993, by a vote of 95-3. The version of the appropriations bill passed by the House did not contain the PRO-KIDS amendment. The conference committee had been, appointed to reconcile tliis and'1 other differences between the House and Senate versions of the bill. The conference com- mittee completed its work on October 5 and submitted' its recommendations in a written repora The House approved the conference committee's report on October 7, and the Senate followed suit on October 18. The floor debatepreceding,the Senate'ss approval of the conference committee report featured'a speech by Senator Frank Lautenberg (D-N.J.), the primary sponsor of the PRO-KIDS legislation.. Lautenberg is also the primary sponsor of a bill known as PRO-FEDS (S. 262), which would restrict smoking in all federal buildings to separately-ventilated areas. Like the PRO-KIDS legislation, the PRO-FEDS measure was added to a House appropriations measure by the Senate, and then removed by a House-Senate conference committee. See issues 55 and 57 of this Reporty September 10 and October 8, 1993. In his October 18 speech on the Senate floor, Lautenberg expressed his "d:ispleasure"' at the fate of his antismoking provisions and vowed to continue in his efforts to pass them. "I believe that both my PRO-FEDS and PRO-KIDS amendments were dropped for substan- tive reasons and not procedural reasons, despite what I feel is overwhelming support for both of them in the Senate„" Lautenberg said. "I want to let-all of my col- leagues know that I will soon return to the Senate floor to offer both of these amendments to appropriate vehicles and I ask for a rollcallivote on both of them. I make this statement so that none of my colleagues will be surprised to see me on the floor trying to protect our children and Federal workers and visitors from the deadly carcinogen called secondhand smoke." During his remarks, Lautenberg referred to the EPA Risk Assessment on ETS and submitted the EPA's July 11993 brochure on ETS into the record. He also submit- ted into the record a press report about the efforts being made by Congressmen to kill his amendments. According to a press report, Lautenberg plans to contact individual secretaries of various federal depart- ments to obtain support, for his PRO-FEDS legislation. He also reportedly plans to contact Senator Wendell. Ford (D-Ky.) to encourage him to adopt a smoking policy for the Senate. Ford chairs the Senate Rules Committee, which purportedly has the authority to ban smoking without a legislative initiative. See Roll' Ca14 October 4, 1993. [21 Committee Submits Report on Traficant Bill On October 15, 1993, the House Committee on, Public Works and~ Transportation filed its report on a bill introduced by Representative James Traficant, Jr., (D-Ohio) that would'restrict smoking in federal, buildings (H.R. 881). As part of the background description of the legislation, the report cites the EPA Ri'sk Assessment on ETS. The report also traces the bill's progress through subcommittee hearings and' summarizes relevant testimony. 20 2 4 7 0Z.5 G 7

2 Quotations from the report follow. "The Committee believes that Congress should not impose a total ban on smoking. H.R. 881, as amended, allows for smoking in separately venti• lated~ areas. The bill, as amended, addresses the issue of ETS in the Federal office workplace, as well as the competing rights of non-smokers versus smok- ers. The committee encourages the heads of Execu- tive Departments and Federal agencies to:survey their employees to ensure full and open~participa- tion in making a reasonable determination regard- ing the issue of smoking areas." •"The conclusions of the EPA report may result in an ~ increasing number of claims against the Federal government by non-smokers who have been exposed to ETS. Independent of the EPA report, the fact remains that a number of workers' compen- sation claims have been successfully pursued by non-smoking Federall employees who have been temporarily or permanencly impaired by exposure to ETS in the workplace." •"As a result of the conclusions of the EPA report, many states, municipalities and private businesses have taken measures to~ban smoking,from their publfc buildings and facilities. California, New Jersey, Ohio, Maryland, Michigans Utah and Idaho are examples of the states which have banned smoking in its [sic] public facilities. Cities whi& have taken similar measures include Denver, Sacramento and Houston. In addition, numerous airports, shopping malls and restaurants, su&as McDonald's have taken measures to limit or eliminate public exposure to tobacco smoke." •"The Congressional Budget Office has reviewed H'.R. 881, the Ban~on Smoking in Federal Build- ings Act, as ordered by the Committee on Public Works and Transportation on June 17, 1993. CBO estimates that implementing the bill would result in no significant cost to the federal government if no special smoking rooms are designated, and up to $50 million over f ve years if separately ventilated smoking rooms are provided in some or relatively large federal buildings." •"Based on information from the General Services Adininistration, we estimate that providing separate ventilation for a speciallsmoking room would cost ETS/IAQ REPORT, ISSUE 58' between $7,500 and $'12,500 for construction, plus $250~to $750 per year, for additional energy costs. Thus, over five years, construction, and energy costs would total between $8,000 and $15,000 per room."' The measure has been referred to the House Com- mittee on Government Operations, where it is sched- uled to be considered on or about November 12. U.S. OCCUPATIONAL SAFETY AND HEALTH AD1v1INISTRATION (O!SHA)' [3] ASH Invites Supporters to File ETS Exposure Complaints With OSHA In an effort to increase pressure on OSHA to ban, smoking in the workplace, ASH is sending,its support- ers an OSHA complaint, form to be filled out by anyone who is exposed to ETS in the workplace. Language preprinted on the form by ASH asserts that, the complaints "must be investigated" and' alleges that workplace exposure to ETS violates the general duty clause of the OSH Act. Copies of the complaint form and ASH's transmittal letter are attached to this Report as Appendix C. Supporters are encouraged to complete the form andl return it to ASH, which promises to forward the com- plaint to the appropriate OSHA office. Supporters also are encouraged to make a financial contribution to ASH. "Our hope is that this new projecn will finally force OSHA to address the smoking,issue," ASH says in the transmittal letter for the complaint form. "We also believe io will help prompt OSHA to issue an across- the-board rule banning smoking„rather thantrying to deal with~ each individual complaint." In ongoing efforts to force a regulation banning workplace smoking, ASH has sued' OSHA in the U.S. Court of Appeals for the District of Columbia four times. The first three cases, filed in~ 1989 and 1991, have been dismissed. The fourth case, filed~ in Decem- ber 1992', is pending. In addition to the December 1992 lawsuin, three of the petitions ASH has filed directly with OSHA remain pending. ASH most recently petitioned OSHA on July 1'2, 1993; the petition asks OSHA to issue an emergency temporary standard banning smoking in the workplace. 2~~247~,~ )Fi~

OCTOBER22, 1993'. OSHA still has not announced whether or how it will dealwith~ ETS in the workplace. In January 1993, then-Labor Secretary Lynn Martin directed the agency to prepare a report on issues related to ETS exposure so that her successor could determine the most appropri- ate rulemaking option. [I4] Secretary Reich Tells AFL-CIO Indoor Air Is a Priority According to press reports, Labor Secretary Robert Reich touched on the subject of indoor air quality while addressing a recent AFL-CIO convention in San Fran, cisco. "Often it is unhealthier to breathe the air inside the workplace than outside the workplace," Reich is quoted as saying. "We have better laws goveming,dean air and water outside the workplace than inside the workplace. But where is it most Americans spend most of their time? In the workplace." Reich spoke in support of OSHA reform, a matter which was considered by convention delegates, who voted to approve a resolution in favor of the Comprehensive Occupational Safety and Health Reform Act (H'.R. 1280, S~: 575). As part of its resolution, the AFL-CIO is calling for stronger standards on indoor air quality. See Daily Labor Repom October 7, 1993;' Government Employee Relations Reporr, October 111, 1993. [5] Witnesses Address Poor IAQ During OSHA Reform Hearing Witnesses testifying before the Senate Subcommittee on Labor on October 5, 1993; addressed workplace IAQ problems while commenting upon proposed OSHA reform legislation (H.R 1280, S.575). Donald Hales, a shop steward for the American Federation of Government Employees Local No. 2367 at the U.S. Military Acad'emy,, West Pointy New York, testified that poor IAQ caused by inadequate ventilation is a problem~that needs to be addressedby OSHA. In addition, Deanne Clarke, a flight attendant who claimed she experienced neurological damage due to a carbon monoxide leak, discussed the indoor air on airplanes. Neither witness linked poor IAQ to ETS. 3 U.S. ENVIRONMENTAL PROTECI i.Oid AGENCY (EPA)~ [6] ETS Risk Assessmenr Litigation: EPA Files Motion for Leave to File Reply Brief in Excess of Page Limit and Attaches Proposed Reply Brief in Support of Motion to Dismiss. On October 19, 1993, EPA tendered to the court a 20-page reply brief in support of its motion to dismiss plaintiffs' complaint. The brief was attached to a motion for leave to exceed the ten-page limit estab- lished by local rule. As of this writing, the court had not ruled om the motion, which is opposed by plain, tiffs. The deadline for f ling the reply brief was October 20, 11993. In the proposed reply brief, the EPA challenges each of the arguments made by the plaintiffs in opposition to the motion to dismiss. The EPA argues that its risk assessment does not constitute "agency action" or "final agenry action." In so arguing, the agency emphasizes that it "did not conduct any original scientific research in preparing,the ETS Report. Rather, EPA examined and compared the results of existing studies of ETS.... When EPA concurred and conclud'ed! in its Report that ETS is a knowm hurnan carcinogeny the Agency was not saying anything different than many others had alread'y said before." In addition, the EPA argues that the court lacks jurisdic- tiom because plaintiffs' claims are not ripe for review. The EPA challenges the plaintiffs' due process claiM by arguing that the Guidelines for Carcinogenic Risk Assessment and for Exposure Assessment do not prescribe substantive rules of decisioniand thus d'o not create a constitutionally-protected interest. The agency also criticizes the case law upon which the plaintiffs rely in support of their claim that an adverse effect on company business constitutes a deprivation of due process. The EPA concludes by stating, "the ample opportuni- ties that the plaintiffs have already had'to comment on, the ETS risk assessment suggests that additional process would be of little value. The balance of factors _ easily swings toward EPA." Scheduled' briefing on the motion to dismiss is now complete; the court has not yet entered an order on the 20Z470Z_S[;,q

4'. oral argument requested by plaintiffs. (The EPA didl not request oral argument.) The court also has not ruled on either of the pending motions for leave to file amicus briefs. Plaintiffs' complaint in this case seeks a declaration that EPA's decision to designate ETS a Group A carcinogen, together with the risk assessment on whi& 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 underHying risk assess- ment. Flue-Cured Tobacco Cooperatrve Stabilization Corporation, etaL, v. EPA, No. 6:93CV370 (U.S. District Court, Middle District, North Carolina) ~ (filed June 22, 1993). [7] Confirmation~ Hearings Held for EPA Nominees On October 20, 1993, confirmation hearings were conducted by the Senate Committee on Environment and Public Works for the nominee to become EPA Assistant Administrator for Air and Radiations Mary Nichols, and the nominee for Assistant Administrator for Administration and Resources Management, Jon Cannom Nb vote was taken on the nominations, and the record was left open for the submission of answers to questions posed during the hearing. Nichols is a former California state official and attorney. She criticized the previous administration's director of the Office of Air and Radiation and the Office of Management and: Budget for creating, procedural roadblbcks M implementing environmental legislation. Cannon testified that he will bring a strong emphasis on management of resources if he is confirmedL [S] Companion Bill Introduce&to Streamline EPA Risk Assessment Procedures A Senate bill that would coordinate the dcvelopment implementation of environmental' policies at the EPA (S. 110) now has a companion bill in, the House of Representatives: H.R. 3111, which was introduced on September 21, 1993, by New Jersey Representative Dick Zimmer (R)~ After its introduction, the House bill' was referred to three committees. t i WtAll tcr.i•ux i, ib5 UL 58 The Senate bill was introduced' in January 1993 by New York Senator Daniel Patrick Moynihan (D). No hearings have been held on the bill;, it has not been marked up or voted out of committee. Further details regarding S. 110 appear in issue 41 of this Report, February 19, 1993. The House measure, "Environmental Risk Reduction Act of 1993;" is virtually identical to the Senate bill, although in the findings section, the Senate measure refers to "pollution prevention and toxic use reduction" as preferred techniques for environmental protection; while the House measure speaks simply of "risk reduction." Both measures would create a Committee on Relative Risks, which would rank the relative risks of environmen- tal problems, and a Committee on Environmental Benefits, which would estimate the quantitative benefits of reducing particular risks. These committees would be independent of the EPA's Science Advisory Boardi The House measure also would require a Committee on Communicating Risk, whichwould "provide expert advice on communicating to the public information on risks in a manner that provides the public accurate and understandable information about those risks." Where the Senate measure would authorize appropriations to carry out the bill in the amount of about $1 billion, the House bill designates "such sums as may be necessary." [9] Top Science Advisor's Role in Jeopardy According to EPA sources, the position of EPA Science Advisor is in doubt due to indecision over the role of the advisor in the Clinton~administration. The current holder of the position, William. Raub, was hired last year after recommendations were made to boost the reputation~of EPA science. Raub has reportr edly been frustrated by the failure of top EPA staff to decide the status of the position under Administrator~ Carol Browner. Although~ Raub apparently would like to remain at the EPA, his one-year detail from the Department of Health and Human Services concludes at the end of November; thus, he may be forced to begin making plans to leave the agency. According to SAB members, the loss of Raub would be a serious blow given his high regard in the scientific community. See Insi& EPA, October 15, 1993. 2024 % 0-2,5'70 i