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SHOOK, HARDY& BACON REPORT ON RECENT ETS AND IAQ DEVELOPMENTS - November 5, 1993 ~ ~ ~.. ~ ~ ~ ~ IL SHB ~

REPORT ON RECENT ETS AND LAQ DEVELOPMENTS - IN THIS ISSUE - IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS • "Smoke-Free Environment Act of 1993" is introduced in the House, p 1. • Senator Mitchell's IAQAct of 1:993 passes the Senate, p. 1 • Maryland OSHA plans to issue emergency workplace smoking ban, p. 2. • Lawsuit is filed in North Carolina seeking overturn of public smoking bans p. 6. • Snringent public smoking,ordinance ad- vances in San~ Francisco, p. 6. IAQ in today's Report • Flight attendant submits written statement on airplane IAQ to Congress, p. 3. • Health off cials say flight attendant infected 23' others with tuberculosis during flight, p. 5. • Article entitled "Cabin Fevers," discusses the spread of infectious disease on airplanes, p. 12 ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS • Parties in child custody case appear on national talk shows, p. 10. ISSUE 59 LEGAL ISSUES AND DEVELOPMENTS • American Public Hcalth Association's annual meeting highlights ETS issues, p. 11. OTHER DEVELOPMENTSIMEDIA COVERAGE • Glantz releases new study on economic consequences of smoking bans on: restau- rants, p. 11. • U! S. Navy announces new smoking policy, p: 12. SCIENTIFIC/TECHNICAL ITEMS • "Previous Cancer and Radio erapy as Risk Factors for Lung Cancer in Lifetime Non- smokers," p. 13. • "Complex Mixtures of Tobacco smoke and! the Occupational Environment," p. 13. • "Nicotine Exposure and the Risk of SIDS," p. 13. IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS • NSW'health minister launches advertising campaign in Australia, p. 14. • Australian ad'seeks individuals who allpgedly suffer from ETS exposure, p. 14. • Hungarian smoking ban legislation fails passage, p. 14. • Alleged effects of ETS on children by parents to be studied in the United King- dom, p. 14. • Prisoner case in Oregon is filed and dis- missed, p. 7. • Activity in Bluitr, Broin„ Butlrr, Dunn and LEGAL ISSUES AND DEVELOPMENTS •"The Effect of Implementation~ of Non- smoking Policies in~the Workplace: An tJ ~ Voth, p. 7. Update on the Law," p. 14. ~ ETS/M1Q LITIGATION'. NbT INVOLVING OTHER DEVELOPMENTS/MEDIA COVERAGE ~ CIGARETTE MANUFACTURERS • French are surveyed on attitudes about ETS, .~ ro a eal is decided 9 na • Pechan v D p. 15. , p. .. p pp . y • Bahura trial put on hold until November 8, • U.K. article entitled "Bang Goes That ~ ~ p. 9: Freedom," p. 15. ~ Three items relate to airplane

-- TABLE OF CONTENTS - Issue 59 November 5, 1993 IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS 10'3D CONGRESS [T] Waxman Proposes to Restrict Smoking In All Nonresidential Buildings ................................. 1 [2] [3] Mitchell IAQ Bill Passes in Senate ........................................................................................... 1 Hearing Held on Kennedy UAQAct ........................................................................................ 2 U'.S. OCCUPATIONAL SAFETY AND HFALTH. ADMINISTRATION (OSHiA). [4] Maryland OSHA Wants to Issue Emergcncy Temporary Standard to Ban [5] Smoking in the Workplace .................................................................................................... .. 2 ASH Demands Immediate Response to Emergency Standard Petition .......................... [6] Witness Statement on OSHA Reform Reveals Government Indifference _ [7] to IAQ Problems on Aircraft ................................................................................................... 3 Senate Republicans Ask Nominee to Answer Questions .......................................................... 3 [8] OSHA to Conduct Studies on Workplace Exposure to ETS ................................................... 4 [9]1 OSHA Reform Legislation Likely to be Reported ouoof Committee ....................................... 4 U.S. ES.TVIRONMENTAL PROTECTION AGENCY (EPA). ['1i0] ETSRiskAssessmnntLitigarion:,Plaintiffs File Sur-reply in Opposition to EPA's Motion to Dismiss Complaint .................................................•---...................--............ 4'. [!1'1] Administration and Congress Reach Accord on EPA Cabinet Status Legislation ..................... 5 U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (H.I-"IS)~ [12] HHS Committee Places ETS on Meeting Agenda ...............................................................•-••S [13] Health Ofl:icialfr Say Flight Attendant Infected Coworkers with TB' ........................................ 5 WHITE HOUSE [14] Clinton Proposes Cigarette Tax to Nearly $1 Per Pack .................................................•.-••••--•• 6 STATE AND~LOCAL GOVERNM~ENTS[15] Mana i Foodt, Inn., et alr v. Wade, et al. (General Court of Justice, Superior Court Division„Guilford County, Nonh Carolina) (filed October 29, 1993) ................................... 6 [16] ETS-Rclatcd State and Local Legislation ................................................................................. 6 ETS-RELATED LITIGATIONAGAINST CIGARETTE MANUFACTURERS (17] Bcnt•z:- New Pro Se Prisoner Case in Oregon Dismssed' ........................................................... 7 [18]I Bluirr: Defendants' Responses to the Complaint Filcd ............................................................. 7 [19]! Broin: Depositions ofAdditional Senior Executives to be Taken ............................................. 8 [20] Butler: Defendants File a Motion for Summary Judgmenn ....................................................... 8 [2i] Dunn: Reply Briefs in Support of Defendants' Motions Filed ................................................. 8 [22] Voth: Defendants' Motions Sched'uled'forSubmission; PlaintifiFilcs Purported Third Amended Complaint .................................................................................... 9, ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS WORKPLACE: CLEAN IN.DOOR.A1R ACT [23] Pechan v. Dynapro: Inc., 1993 111. App. LEXIS 1598' (Appellate Court, Second'District, Illinois) (decided October 19; 1993) .................................••••-•.••-•---.•-•••.--..---9 WORKPLrCE: IAQ [z41 Bchura v.,SEW7nvesrors (Superior Court, District of Columbia) (filcd:Scptember 14', 1990) ....... 9 CHILD CUSTODY~ [25J Masone v. Tannrr(Superior Court, Sacramento, California) (Temporary custody order entered October 13, 1993)'.........-•-••.•••••-•.-••.••--.••-••••••••-••••••-.•••••• 10 GRADUATE SCHOOL EXPOSURE [26] Beckman v. New York City School of VisualArts (U.S. District Court, New York) (filed January 1!6. 1992) .............................................................................................. .......... 10 PRISONER CASE [27] Graham v: Guntsr, 1993 WL432565 (U.S. CourrofAppeals, Tcnth Circuit) (decided October 27, 1993)'(unpublished opinion) .............................................................. 10

Contents Continued, Issue 59 LEGAL ISSUES AND DEVELOPMENTS [28] "'You've Come a Long Way, Smokers'c North Carolina Preserves the Employee's Right to Smoke Off the Job in General Statutes Section 95-28.2," L.L. Fryc, North Carolina LatuReview„September 1993 ........................... 10 ..................................... 1l1 [29] i New York Attorney Advises Employers to Ban Smoking .................. [30]I Health Association Considers ETS Issues at Annual Meeting ................. ...........•--•••-••• 1'1. OTHER DEVELOPMENTS [31J New Glantz Study Reports No Loss of Business to Smoke-ftee Restaurants .......................... 1 1 [32] U.S. Navy Announces Uniform Smoking Restrictions .......................................................... 12 MEDIA COVERAGE [33] "Cabin Fevers," A. Landi, Frtquent Flyer, Nbvembcr 1993 .................................................... 12 [341 "Curing 'Sick Building Syndrome,'" G. Krieger, R. Grecnway _ and S. Sodcrsten, Elements, 1993 ............. ..... ......................................................................... ....... 12 SCIENTIFIC/TECHNICAL ITEMS UPCOMING SCIENTIFIC MEETINGS [35] Bugst Mold & Rot I9: Control'of Humidiry for Hcalrh, Artifacts and Buildings, Alexandria, Virginia, November 16-17, 1993 ....................................................... 12 LUNG CANCER [36) "Previous Cancer and Radiotherapy as Risk Factors for Lung CanceninLifcrimc Nonsmokers," G.C:,Kabat, CancrrCaures and'Contro/4:,489-495, 1993 [See Appendix A] ...... 13 [37] "lhcidence of Cancer Among Male Waiters and Cooks: Two Norwegian Cohorts," K. Kjaerheim and A. Andersen, Cancer Causzs and Control4: 419-426, 1993 [See Appendix A] .................................................................................................... .............. 13 OTHER HEALTH ISSUES [38] "Complex Mixtures of Tobacco Smoke and the Occupational Environment," D.M, Aviado. In: Parry's Industrial Hygicne and Toxicology (Fourth Edition, Volume 2, Part A). G.D. Clayton and F.E. Clayton (eds.). John Wiley and Sons, 107-148; 1993 [See Appendix A] ................................................................................. 13 [39]' "Nieotine Exposure and the Risk of SIDS," JL Milerad and H. Sundell. Acta Paediarrica (Suppl.) 389: 70-72, 1993 [See Appendix A] ............................................... 13 ETS EXPOSURE AND MONITORING [40] "Relevance of Nicotine Content of Common Vegetables to the Identi6c.ation of Passive Tobacco Smokers," E.F. Domino, E. Hornbach, and T. Demana, Medical Science Rcsrarch 21: 571-572, 1993 [Sce Appendix A] .............................................. 13 INDOOR AIR QUALITY' [411 "Is It Time to Change the Terminology of Sick Building Syndrome?" B. Jarvholin, IndvorEn,vironmrnt 2: 186-188, 1993 [Sec Appendix A] .................................. 13 ['42] "New Approaches for the Determination of Ventilation Ratcs:. The Role of Sensory Perception," M.V. Jokl, G.B. Leslie, and L_S. Levy, lrtdoor Envrronrnenr2: 143-148, 1993 [See Appendix A] ...................................... 13 [431 "Status of ASHR?.E Stand'ard'62 - Vcntilation for Acceptable Indoor Air Quality," W.G. Tucker, Proceedings oflndaorAi. "93 3: 525-530, 1993 [See Appendix A] ................... 14. IN EURaPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS AusTRALiA [44] New Advertising Campaign Launched by NSW Health Minister .......................................... 14 [45] Antismoking Group Places ETS Advertisement ................ ..................................................... 14 HuNGGw1tY [I46] Smoking Ban Proposal Fails to Pass in Budapest ...................................................................,1'4, MALAYSIA [47] More Public Areas to be Designated Nonsmoking .......................................................•-••.•••• 14 UNITED K7NGDOM [48J Ofl'iceofPopulation and Censuses to lnvestigate Parental Smoking ...................................... 14

Contents Continued,, Issue 59 LEGAL ISSUES AND DEVELOPMENTS UNITED KINGDOM [49] "The Effect of Implementation of Non-smoking Policies in the Workplace: An Update on the Law," L. Goldman,,.lddicrion, 11993 ......................................................... 114 OTHER DEVELOPMENTS FRANCE [50] 1 Surveys Report French Attitudes About ETS ................................••..-••••-••••••••-•••--••-••••••••--•• •- 15 UNITED ]KINGDOM [51]' Smokers Fired~ for Smoking on Factory Roof ......................................................................... 15 MEDIA COVERAGE UNITED KINGDOM [52] "Bang Goes That Freedom," B. Levin, The Timrs, October 11% 1993...........•..•--••-••••••--•••.•••• 15 APPENDIX A .................................................................................................... .............•---..........---- Article Summaries APPENDIX B .................................................................................................... ............. Upcoming Scientific Meetings

NOVEMBER 5, 1993. i REPORT ON RECENT ETS AND IAQ DEVELOPMENTS IN THE UNITED, STATES REGULATORY AND LEGISLATIVE MATTERS 103D CONGRESS [1] Waxman Proposes to Restrict Smoking In All Nonresidential Buildings On November 3, 1993, Representative Henry Waxman (D-Cal.) ~ introduced the "Smoke-Free Environment Act of 1993" (H.R. 3434). The bill would restrict smoking to separately ventilated~ areas of nearly every building in the United' States. The mea- sure woul& prohibit smoking indoors and in the immediate vicinity of the entrances to nonresidential buildings into which at least 10 people enter one day each week. The only exception to the prohibition would be specially designated areas that are "ventilated in accordance with specifications promulgated by the [EPA] IAdministrator that insure that air from the area is directly exhausted to the outside and does not recirculate or drift to other areas within the public facility," and intowhich "nonsmoking,individuals" do not have to enter for any purpose. Fines of $5,000 per day for viol'ations of the bill could be assessed against building proprietors, and action to enforce the bill could be taken by "any aggrieved person, any State or local government agency, or the [EPA] Administrator." A fact sheet accompanying the measure as released by Waxman recites assertions about ETS made by the EPA. In addition, in a letter to his congressional colleagues, Waxman cites the EPA Risk Assessment on ETS to support his legislation and attacks the tobacco industry for trying to create a "`wisp of uncertainty' about the health effects of tobacco even when overwhelming,scientific certainty exists." Waxman's bill is cosponsored by 35 other representatives. Senator Frank Lautenberg (D-NJ.) announced on October 29, 1993, that he planned to introduce companion legislation in the Senate. As of this writing,, that legislation had not yet been introduced: ' Lautenberg and Waxman appeared at a press confer- ence to announce the legislation. They were joined b members of BOMA and health and consumer organi- zations who spoke in favor of the bill. See PR Newswi're and Associated Press; October 29, 1993; BNA Daily La6or Report, November 1, 1993. [2] Mitchell IAQ Bill Passes in Senate On October 29, 1993, the Senate passed the Indoor Air Quality Act of 1993 (S. 656), which~was intro- duced in March by Maine Senator George Mitchell (D). The bill gives regulatory authority over indoor air to the EPA and provides for research to be conducted on indoor air quality issues. Similar measures were introduced and passed in, the Senate in the 101 st and T 02d Congress. Further details about the measure appear in issue 44 of this Report, April 2, 1993. The measure does not refer specifically to ETS, but the Senate report accompanying the measure specifically discusses the EPA Risk Assessment on ETS to supportt the claim that significant health effects result from contaminants in indoor air. Amendments made to the bilL in committee extend to 18 months from the date of enactment the time for EPA to publish a list of contaminants "that may occur or are known to occur in indoor air at levels which may reasonably be expected to have an adverse impact on human healthL" This list must contain "at a minimum, benzene, biol'ogicalicontaminants, carbon monoxide, formaidehyde, lead, methylrne chloride, nitrogen oxide, particulate matter, asbestos, polycyclic aromatic hydrocarbons (PAHs), and radon." The amendments also give EPA additional time in which to develop its first set of health advisories as well as give EPA additional research authority. Deleted from the measure are provisions for a new office of indoor air, qquality at EPA separate from the Office of Radiation and Ind'oor Air Quality, as well as 2 require-

2 ment for the Council on Indoor Air Quality to report to Congress on the progress of IAQ programs. During debate on the measure prior to its passage in the Senate, only one senator referred to the findings of the ETS risk assessment. Senator Joseph Lieberman (D-Conn.) stated, "Exposure to tobacco smoke is in fact responsible, according to EPA for 3,000 lung cancer deaths in nonsmoking adults and impairs the respiratory health of hundreds of thousands of chil- drem" The bill now goes to the House for consider- ation. See Associated Prfss;, October 29, 1993; Chicago Tribune, October 31, 1993. Senator Frank Lautenberg (D-NIJ.) supplemented the record on~ November 11, 1993, with his remarks in support of the Mitchell billl In this regard, he cited the ETS risk assessment, stating "earlier this year, EPA issued a scientifically peer-reviewed! report concluding that environmental tobacco smoke is a careinogen.°'He also referred to the PRO-KIDS (S. 2611) and PRO- FEDS (S. 262) legislation, he introduced this year, and he urged Congress to enact these bills as well. [3] Hearing Held on Kennedy IAQAct On November 1, 1993, a hearing was held before a House subcommittee on the Indoor Air Act of 1993 (H'.R 2919)~ introduced on August 6, 1993, by Massachusetts Representative Joseph Kennedy II1 (D). Representative Henry Waxman (D-Cal.) made a statemenr: during the hearing,in which he made a veiled reference to the legislation on ETS that he introduced~ to Congress two days later. Robert Sussman, deputy administrator of EPA, gave qualified support to the Kennedy legislation. He was concerned with the short time lines specified' for EPA action in the bill and indicated that requiring mandatory guidelines is premature until EPA has an opportunity to evaluate the success of voluntary programs. With regard to ETS, Sussman stated that it, and other; contaminants, "can cause long and short term health eff'ects, especially when inadequate ventilation allows ind'oor concentrations to increase." Sussman made a passing reference to the f ndings of the EPA Risk Assessment on ETS in his written statement to the subcommittee. ETS/IAQ REPORT, ISSUE 59 Lynn Rhinehart, testifying on behalf of the AFL-CIO, stated, "We strongly support the legislation's recognition that indoor air quality can be addressed through a building systems approach, and! that a contaminant-by-contaminant approach is not necessarily the only or even the best way to approach indoor air quality problems." Rhinehart suggested that the roles of NIOSH and OSHA be expanded und'er the legislation and urged Congress to "make clear that OSHA retains jurisdiction over indoor air quality in workplaces that fall' under OSHA's jurisdiction."' A BOMA representative referred' to the ETS risk assess- ment to support an assertion that ETS is "one of the most obvious and widespread sources of indoor air complaints." BOMA criticized the legislation, however, for taking a "polllstant-by-pollutant" approach: The organization ~ has also taken the position that EPA should non be given unilateral authority to regulate indoor air. An approach stressing practical guidance based on sound researchwould be preferred by BOMA Representatives from the Business Council on Indoor Air, Chemical'~ Specialty Manufacturers Association, National''Association of Manufacturers and Total Indoor Environmental QualicyCoalition also testified and were critical of the bill. Specifically cited was the additional layers of bureaucracy that would be created by the legislation, These organizations favor a building systems approach to 1AQ problems and strenuously objected to the role given to EPA under the bill. The hearing was before the H'ealth and~ Environment subcommittee of the House Committee on Energy and Commerce. U.S. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA). [4] Maryland OSHA Wants to Issue Emergency Temporary Standard to Ban Smoking in the Workplace According to a press report, the Maryland Occupational Safety and Health Agency will'attcmpt to promulgate an emergency temporary standard to ban smoking in virtually every workplace in the state. The agency has apparently been directed~ by Maryland's secretary of licensing and regulation to draft a blanket emergency regulation prohibiting smoking, with no allowance for separately ventilated smoking areas, by the first week of November 1'993.

NOVEMBER 5, 1993 The proposal will reportedly be submitted to the governor and to the state's executive committee, which reviews state job safety rulemakings. The committee will decide whether to hold public hearings on the issue. A government spokesperson cited the EPA Risk Assessment on ETS as a motivating factor in the agency's decision and acknowledged that the rulemaking will probably be challenged in court. See BNA Daily Labor Report; November I, 1993. [5] ASH Demands Immediate Response to Emer- genry Standard Petition In a letter dated September 30, 1993, ASH demanded that OSHA "immediately take action~on ASH's petition for an emergency temporary standard" on~ETS. The letter continues, "Uhless a decision is made on our petition~ within ten days from the date of this letter, ASH will' feel free to file suit to have the U!S: Circuit Court here in Washingtons D.C. order OSHA to take action on the petition." ASH filed its petition for an emergency temporary standard with OSHA onJuly 12, 1993. Further details about that petition appear in issue 53 of this Report, August 6, 1993. As of November 4, 1993; there was no indication ASH had indeed filed a suit to force OSHA to act on its petition for an emergency temporary standard. Attached to ASH's letter are copies of its emergency petition, the January 1993 memorandum from outgoing Secretary of Labor Lynn Martin to Dorothy Strunk ordering OSHA to commence ETS rulemaking as soon as possible, and EPA and NIOSH' workplace smoking guidelines. In addition to the July 1993 Petition for Emergency Temporary Standard, three of the petitions ASH has filed directly with OSHA are currently pending. Also pending is a petition for review filed by ASU against OSHA in~ the District of Columbia Circuit Court of Appeals. In addition, ASH recently invited its support- ers to file ETS exposure complaints with OSHA. See issue 58 of this Report, October 22, 1993. [6] Witness Statement on OSHA Reform Reveals Government Indifference to IAQ Problems on Aircraft Flight attendant Deanne Clarke, who recently testified about OSHA reform legislation before the Senate Subcommittee on Labor, submitted a statement 3 to the subcommittee investigating IAQ problems on aircraft. In this regard, Clarke made the following remarks: • "There were 235 separate flights with air quality incidents and 506 related flight attendant illnesses reported from July 1989 to the present on my carrier alone. These flight attendants have reported headaches, blurred vision, an&other health prob- lems. The Association of Flight Attendants con- tacted the FAA immediately when flight attendants began getting ill. Despite numerous calls and letters, the FAA has never taken any action: In fact, my unionn learned last week that in September of 1991, the FAA requested that the carrier no longer send reporrs on air quality incidents and illnesses to the agency." • "Since the FAA claimed total jurisdiction over airline crewmember health and safety in 1975, the FAA has failed to make any serious effort to address occupational safety and health issues outside the area of crash survivability. The threat of... radia- tion, passengers' viral illnesses,... noise and inadequate climate controls argues forcefully for strong agency oversight of occupational hazards on aircraft. Yet, the reality is that flight attendants are unprotected and desperately need OSHA coverage." Most of Clarke's statement was concerned with the injuries she suffered on a 45-minute flight due to a carbon monoxide leak. See issue 58 of this R'eport,. October 22, 1993. The Safe Cabin Air Quality Act of 1993 (H.R. 2986) was introduced on August 6, 1993. The bill would require the Federal'Aviation Administration to issue regulations to improve indoor air quality on~commer- cial aircraft. [7] Senate Republicans Ask Nominee to Answer Questions According to a press report, Republican, members of the Senate Labor and Human Resources Committee recently sent a series of questions related to occupa- tional safety and health to Joseph Dear, the Clinton administration's nominee for assistant secretary in charge of OSHA. An OSHA spokesperson reportedly said that Dear was expected to complete his responses during the week of October 25, 1993. A Democratic

4 source, who had not seen the Republican questions, reportedly said the questions probably do not signal a possible impediment to Dear's confirmation as there stillidoes not appear to be any strong opposition to the nomination in the business community. See Occupa- tional Sa. fety d' H'ealth Reporter, October 27, 1993. [I8] OSHA to Conduct Studies on Workplace Exposure to ETS OS1 iA has reportedly decided to conduct two studies to assess whether there is a link between ETS exposure in the workplace andl increased risks of lung cancer and heart disease. The studies, which have been contracted to outside consultants, are scheduled to be completed in February and September 1994. The consultants will not apparently be conducting new research for the studies. Maryland-based Meridian Research Inc. will' reportedly be required'to review already available research purportedly linking ETS to cardiovascular disease and research on lung cancer conducted since the EPA Risk Assessment on ETS was released. The study to be conducted by Louisiana-based! Clement International will evidently review existing research to determine whether data measuring levels of cotinine and nicotine in the bloodstream of those exposed to ETS can be used to estimate risks of lung cancer and heart disease. OSHA reportedly decided to include cardiovascular research in the scope of its review because it determined "substantial evidence exists in the literature to support the agency including cardiovascular disease in its analysis of health effects" of ETS "and perhaps its inclusion in a preliminary quantitative risk assessment." See BNA Daily Labor Report„October 19, 1993. [9] OSHA Reform Legislation Likely to be Re- ported out of Committee According to House staffers, the House Educatiom and Labor Committee is detersnined'to report the Comprehensive Safety and Health Reform Act (H.R. 1280) out of committee this year with or without input from the Clintom administration. Although a number of hearings have been held on the measure, OSHA has not yet taken a formal position on the bill. Labor and industry representatives do not apparently agree on many of the bill's provisions, but chief counsel' for the subcommittee on Labor Standards, Occupa- ETS/lAQ REPORT, ISSUE 59 tional Health~and Safety has been quoted as saying that consensus is possible. Key provisions of the bill,, introducedlby Representative William Ford (D-Mich.), would increase employer-employee participation in safety efforts,,force more prompt federal response to safery petitions and create stricter penalties for violations. See Occupational H'ealth &Safery Letter, October 6, 1993. U.S. ENVIRONMENTAL PROTECTION'AGENCY (EPA) [ 10] ETS Risk AssessmentLitigatiom Plaintiffs File Sur-reply in Opposition to EPA's Motion to Dismiss Complaint The tobacco industry plaintiffs filed a sur-reply in opposition to the EPA's motion to dismiss on Novem- ber 2, 1993. The sur,reply responds to the new arguments raised by EPA's reply brief im support of the motion to dismiss which was filed on October 20, 1993. Further details about the EPA's reply brief appear in issue 58 of this Report, October 22, 1993. Plaintiffs argue that the EPA's Risk and~ Exposure Assessment Guidelines create "substantive predicates" that limit the agency's discretion and give plaintiffs a due process interest. According to plaintiffs, the Guidelines are unequivocal that EPA must satisfy certain criteria before designating a substance a Group A carcinogen: The plaintiffs also note that the EPA admitted the mandatory character of the guidelines in~ its answer to the complaint. Plaintiffs also argue that their goodbvill is a protected property interest and'criticize the cases relied upon by the EPA in attempting to refute this daint. Finally, the sur-reply challenges EPA's repetitive claim that EPA's decision is not, subject to judicial review. Scheduled ~ briefing on the motion to dismiss is com- plete; the court has not yet entered an order on the oral argument requested by plaintiffs. EPA did not request oral argument. The court also has not ruled on either of the pending motions for leave to file amici 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 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

NOVEMBER 5, 1993 a permanent injunction requiring EPA to withdraw the Group A designation and the underlying risk assess- ment. Fluc-Cured Tobacco Cooperative Stabilization Corporation, rt aL v. EPA (U.S. District Court, Middle District, North Carolina) (filed June 22, 1993)' [Il1] Administration and Congress Reach Accord on EPA Cabinet Status Legislation According to a press repon, the Clinton administra- tion and key House members have drafted a compro- mise measure which clears the way for floor action on a bill to elevate EPA to cabinet levelistatus. One major provision that is noticeably absent, from the House draft is a controversial risk-assessment amendment that was placed in the Senate bill! by Louisiana Senator Bennett Johnston (D). Although the Senate has already approved such a bill, (S. 171), the House measure has not yet been formally introd'uced. Further, details about the Senate measure appear in issue 47 of this Report, May 14, 1993. The draft measure reportedly will not contain an administration proposal to eliminate the White House Council on Environmental Qualiry; or task-specific language that had been proposed by R'epresentative John Conyers (D-Mich.): The bill does, however, apparently contain provisions to improve the EPA's management of outside contracts. SecAir Water Pollutdon Report, October 11, 1993; Hazardous Waste News, October 1'9; 1993. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS)~ [12] HHS Committee Places ETS on Meeting Agenda The ICD-9-CM Coordination and Maintenance Committee of HHS will hold a meeting on December 2, 1993, during which it is scheduled to consider the classification of, among,other matters, the purported "toxic effect of second-hand smoke." ICD-9-CM~ is a coding system that is used for the reporting of diag- noses and procedures performed on a patient by hospitals and doctors. The committee was formed in September 1985. It is a federal' interdepartmental committee charged, in part, 5 with the mission of maintaining and updating the ICD-9-CM. This work includes approving coding changes and developing errata, addenda and' other modifications to reflect newly developed procedures and technologies and newly identified diseases. The committee also promotes the use of federal and nonfederall educational! programs and other communi- cation techniques to standardize coding applications and upgrade the quality of the classification system. The committee encourages participation in its deliberations by health-relate& organizations which are invited to discuss proposed changes to the coding system during public meetings. Committee recommen- dations must be approved by the National Center for Health Statistics and the Health Care Financing Administration of HHS. [13] Health Officials Say Flight Attendant Infected Coworkers with TB According to federal health officials, a Continental Airlines flight attendant with active tuberculosis (TB) infected 23 crew members who workedwith her during several lengthy internationali flights to Europe and Mexico inAugust and October 1992. The flights took place on aircraft with a ventilation system alleg- edly providing 50 percent fresh air and 50 percent recirculatedai'r every three minutes. Two crew mem- bers had'tested negative for TB before the flight, and then tested positive after flying with her. The other infected flight attendants had not been tested prior too the flights. The Center for Prevention Services, a Centers for Disease Control and Prevention agency (CDC); has reportedly recently studied the incident. A number of passengers who were on flights with the flight attendant were also tested,,and although some had positive skin tests, the CDC could not conclusively say that the virus had been transmitted by the flight attendant. The director of air safety and health of the Association of Flight Attendants reportedly said, "TB' iss particularly a risk, given the increasing incidence in the population. Aircraft ventilation systems need: to be designed assuming that TB is present. We hope that the CDC will expand its investigation of transmission of communicable diseases on airlines." See The New York Times, October 21, 1993.