OSHA's Indoor Air Quality (IAQ) Action Into Smoking Regulation

Click here for [Timeline of Action - a 12 year review]


Q. What's the status of OSHA's proposal for a regulation on indoor air
quality and environmental tobacco smoke, otherwise known as
second-hand smoke?

A. OSHA's April 5, 1994 proposal on indoor air quality evoked the largest public response
in the agency's history, with more the 100,000 comments received when the comment
period closed in August 1995. Hearings began September 20, 1994 and ran until March
13, 1995, with more than 400 witnesses testifying. The post hearing comment period
ended January 16, 1996. At this time, OSHA is continuing to review the comments and
testimony from concerned Americans before proceeding. No target date has been
established for a final determination on the issue.


OSHA withdrawal of its Indoor Air Quality proposal

[Click HERE to read Action on Smoking and Health's (ASH) remarks (please read between the lines -- OSHA wasn't convinced) concerning their involvement in petitioning for this action to begin with, their lawsuit and their dismissal of this suit which has brought the book to close on this chapter in their never-ending quest to regulate behavior by using federal agencies to impose their will.  OSHA caught on, thankfully]


AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Withdrawal of Proposal

SUMMARY: OSHA is withdrawing its Indoor Air Quality proposal and terminating the rulemaking proceeding. In the years
since the proposal was issued, a great many state and local governments and private employers have taken action to curtail
smoking in public areas and in workplaces. In addition, the portion of the proposal not related to environmental tobacco smoke (ETS) received little attention during the rulemaking proceedings, and much of that consisted of commenters calling into
question significant portions of the proposal. As a result, record evidence supporting the non-ETS portion of the proposal is

Withdrawal of this proposal will also allow the Agency to devote its resources to other projects. The Agency¹s current
regulatory priorities, as set forth in the Regulatory Agenda, include a number of important occupational safety and health
standards. This notice does not prelude any agency action that OSHA may find to be appropriate in the future.

DATES: The withdrawal is effective [insert date of publication in the Federal Register].

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, OSHA Public Affairs Office, Occupational
Safety and Health Administration, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington,
D.C. 20210; Telephone (202) 693-1999; FAX (202) 693-1634.

Authority and Signature

This document was prepared under the direction of John L. Henshaw, Assistant Secretary of Labor of Occupational Safety
and health, U.S. Department of Labor. It is issued pursuant to section 6(b) of the Occupational Safety and Health Act of 1970
(84 Stat. 1594, 29 U.S.C. 655) and 29 C.F.R. 1911.18.

Signed at Washington, D.C. this ________ of December 2001.


John L. Henshaw

Assistant Secretary of Labor

Stanton Glantz, leader in the anti-smoking effort to force OSHA to create federal guidelines and a professor at UC San
Francisco medical school (although he only holds a degree in Applied Mechanics), had this to say in a LA Times article on December 19th:

"It was a waste of energy to expect President Bush to do anything that would be counter to the interests of the tobacco industry."

Pay close attention to the timeline provided.  This process began in 1987 and ASH brought suit against OSHA in 1989.  In real life that's a short period of time in the government's wheels.  Then Clinton took office for the bulk of the 1990s.  This languished for 8 years during the Clinton administration and Glantz wants to pin, and have you believe, the blame on Bush who has only been in office for just under a year?

NYC C.L.A.S.H. had this to say in response to this article:

TO: letters@latimes.com
Why do you allow the anti-smoking organizations, Action on Smoking and
Health (ASH) in particular, and namely Stanton Glantz of UCSF who is no
more a doctor in the medical sense than I am according to his university
records, to sugarcoat the truth about why OSHA dropped their 12 year
long process to determine federal workplace smoking guidelines?  It's
not, as they would have you believe, because of any failure on the part
of OSHA or influence by the tobacco industry that would undermine their
goal of a smoke-free society based on alleged harm from secondhand
smoke.  It's due to OSHA's recognition that there is not enough
substantial evidence on which to dictate such guidelines.  They said as
much in 1987 when ASH first petitioned them and in 1991 the courts
agreed, saying OSHA has reasonably determined that it could not
sufficiently quantify the workplace risk associated with tobacco smoke
to justify an Emergency Temporary Standard, after ASH pushed the issue
again in 1989.  They didn't gallantly urge OSHA to drop the proposal
because they feared it being watered down, they dropped it like a hot
potato when they realized they'd be exposed for the frauds that they are
and couldn't fight that threat any other way. The anti-smokers couldn't
accept it then and falsely claim a "victory" now.  The only victory here
is that truth prevailed and they've been left trying to spin that truth
as usual.



A. Events Leading to This Action

Concern about the health hazards posed by occupational exposure to environmental
tobacco smoke (ETS) prompted three public interest groups to petition the Agency in
May 1987 for an Emergency Temporary Standard under section 6(c) of the Occupational
Safety and Health (OSH) Act, 29 U.S.C. 655(c). The American Public Health Association
and Public Citizens submitted a joint petition; Action on Smoking and Health (ASH) also
submitted a petition. The petitions requested the prohibition of smoking in most indoor

OSHA determined, that available data with respect to exposures were insufficient to
demonstrate the existence of a "grave danger," within the meaning of section 6(c) of the
OSH Act, from workplace exposure to ETS. OSHA denied the petitions in September
1989 but continued to investigate regulatory options.

In October 1989 ASH filed suit in the U.S. Court of Appeals for the District of Columbia
Circuit for review of OSHA's denial of its petition for an Emergency Temporary
Standard. The court denied ASH's petition for review in May 1991, finding that OSHA
has reasonably determined that it could not sufficiently quantify the workplace risk
associated with tobacco smoke to justify an Emergency Temporary Standard.

OSHA issued on September 20, 1991, a Request for Information (RFI) (56 FR 47892)
on indoor air quality problems, in order to obtain information necessary to determine
whether it would be appropriate and feasible to pursue regulatory action concerning
Indoor Air Quality (IAQ).  Issues on which comments were requested in the RFI included
health effects attributable to poor IAQ, ventilation systems performance, exposure
assessment, and abatement methods. Information concerning specific contaminants such
as ETS and bioaerosols was also requested.

In March 1992, the AFL-CIO petitioned OSHA to promulgate an overall IAQ standard.
OSHA responded in May 1992 that such a standard was under consideration.

In response to the RFI, over 1,200 comments were submitted by interested persons,
groups, unions, and industries. Issues of particular concern identified in the comments, in
addition to health effects considerations, include the lack of ventilation performance
standards; the lack of worker training on the operation and maintenance of Heating
Ventilation and Air Conditioning (HVAC) systems; the lack of pollutant source control;
and the lack of available technical guidance on IAQ issues and control techniques.

Abstract: OSHA was petitioned in May 1987 by Action on Smoking and Health (ASH),
Public Citizen, and the American Public Health Association to issue an emergency
temporary standard on environmental tobacco smoke (ETS) in the workplace. In March
1992, OSHA was petitioned by the AFL-CIO to establish workplace IAQ standards. In
December 1992, ASH again petitioned for rulemaking on ETS.

After reviewing and analyzing available information, OSHA published a proposed rule
on April 5, 1994. The proposal would require employers to write and implement indoor
air quality compliance plans that would include inspection and maintenance of current
building ventilation systems to ensure they are functioning as designed. In buildings
where smoking is allowed, the proposal would require designated smoking areas that
would be separate, enclosed rooms where the air would be exhausted directly to the
outside. Other proposed provisions would require employers to maintain healthy air
quality during renovation, remodeling, and similar activities. The provisions for indoor
air quality would apply to 70 million workers and more than 4.5 million nonindustrial
indoor work environments, including schools and training centers, offices, commercial
establishments, health care facilities, cafeterias and factory break rooms. ETS provisions
would apply to all 6 million industrial and nonindustrial work environments under
OSHA's jurisdiction. OSHA preliminarily estimates that the proposed standard will
prevent a substantial number of air-quality related illnesses per year.

Action                                          Date                       FR Cite

Request for Information            09/20/91              56 FR 47892
NPRM                                        04/05/94              59 FR 15968
NPRM Comment Period End    08/13/94              59 FR 30560
Record Closed                            02/09/96
Next Action Undetermined

   Regulatory Flexibility Analysis Required: Undetermined

   Government Levels Affected: Undetermined

   Federalism: This action may have federalism implications as defined in EO 13132.

   Agency Contact: Marthe B. Kent, Acting Director, Directorate of Health Standards
Programs, Department of Labor, Occupational Safety and Health Administration, Room
N3718, 200 Constitution Avenue NW, FP Building, Washington, DC 20210 Phone: 202
693-1950 Fax: 202-693-1678

   RIN: 1218-AB37

ASH Nixes OSHA Suit To Prevent Harm to Movement [12/14-6]

Action on Smoking and Health (ASH) has agreed to dismiss its law suit against the Occupational Safety and Health
Administration [OSHA] to avoid serious harm to the nonsmokers' rights movement from an adverse action OSHA
had threatened to take if forced by the law suit to do so.

In its court filing, OSHA had argued that it might not be feasible to ban smoking in restaurants, and that developing
some hypothetical measurement of tobacco smoke pollution might be a better remedy than prohibiting smoking.

However, in its court response, ASH noted that smoking bans in California, Maryland, and many other jurisdictions
clearly prove that smoking bans are feasible, and that there is no evidence that any level of tobacco smoke
however measured would ever meet OSHA's regulatory mandate to prevent worker deaths.

Nevertheless, it became clear that OSHA would use this (and perhaps even stronger) language in a formal OSHA
decision if ASH continued to press its law suit, and that such language could seriously hurt efforts to pass
nonsmokers' rights legislation at the state and local level, and to get relief for nonsmokers in court suits and
administrative proceedings

Another major threat was that, if the agency were forced by ASH's law suit to promulgate a rule regulating smoking
in the workplace, OSHA -- at least under this administration -- would be likely to pass a very weak one.  This weak
rule in turn could pre-empt future and possibly even existing nonsmokers' rights law -- a risk no one is willing to

ASH therefore reluctantly agreed to dismiss the law suit after consultation with other leaders in the nonsmokers'
rights movement.

As a result of ASH's dismissal of its law suit, OSHA will now withdraw its rulemaking proceeding related to
workplace smoking, but will do so without using any of the damaging language which they had threatened to
include.  Indeed, the notice of dismissal, which is scheduled to appear shortly in the Federal Register, will note
three things of importance to ASH and to the nonsmokers' rights movement:
    1. that a great many state and local laws have already curtailed smoking in workplaces and public places;
    2. that OSHA' s decision now does not foreclose further action in this issue at some future time; AND
    3. that evidence supporting the non-ETS portion of the proposal is sparse - and, therefore, by implication, that
the evidence supporting the ETS portion of the proposal was not sparse.

ASH Executive Director John Banzhaf  also noted that the decision does not preclude Action on Smoking and
Health from taking other actions involving federal and/or state OSHA to protect nonsmokers in smoky
workplaces.  He noted that ASH had been a major force in helping to persuade Maryland's OSHA [MOSH] to ban
smoking in workplaces; a major victory considering that Maryland is a major tobacco growing state, and one which
might be fruitful if pursued in other states.

He also noted that ASH continues to supply nonsmokers with forms under which they can complain about
workplace smoking -- a project which may become more effective once the rulemaking proceeding is dismissed and
can no longer be used as an excuse for OSHA to refuse to act on individual complaints.

Below is a press release which ASH has issued, followed by the Withdrawal of Proposal by OSHA which will be
published shortly in the Federal Register.



  A law suit seeking to force the Occupational Safety and Health Administration (OSHA) to take some final action
on its long-delayed workplace smoking proceeding has been dismissed as moot since the agency is terminating the
proceeding entirely as a result of the law suit.

  The plaintiff, Action on Smoking and Health (ASH), says the suit's dismissal will avoid forcing OSHA to take the
action it had suggested in its court filings which could have been very harmful to the nonsmokers' rights movement.

  In those papers OSHA suggested that it might not be feasible to ban smoking in restaurants, and that developing
some hypothetical measurement of tobacco smoke pollution might be a better remedy than prohibiting smoking.

  However, in its court response ASH noted that smoking bans in California, Maryland, and many other
jurisdictions clearly prove that smoking bans are feasible, and that there is no evidence that any level of tobacco
smoke would meet OSHA's regulatory mandate to prevent worker deaths.

  The U.S. Court of Appeals apparently accepted ASH's arguments.  Rather than ruling in OSHA's favor as the
agency had requested, the court ordered OSHA to submit a timetable for taking action on the proceeding, thereby
prompting OSHA to terminate the rulemaking proceeding effective next week.

  "Thus, even though we are confident that we could have persuaded the court to overrule OSHA if it sought to rely
upon those nonsensical arguments in terminating its rulemaking proceeding, we are happy that OSHA is not going
to be pressured into having to take such a position in a formal document," says law professor John Banzhaf, ASH's
Executive Director.  OSHA also could have issued a very weak rule, and one which would have preempted very
strong existing and future state and local laws prohibiting smoking, he said.

  "We might now be even more successful in persuading states and localities to finally ban smoking on their own
once they no longer have the OSHA workplace smoking rulemaking to hide behind," Banzhaf predicted.

BREAKING NEWS; December 1, 2002

OSHA postpones IAQ rulemaking
However, broad new mold regulations are expected

In 1987 and again in 1992, OSHA was petitioned by anti-smoking groups to enact emergency rules on second-hand tobacco smoke. In 1992, OSHA was also petitioned by the AFLCIO to establish workplace indoor air quality (IAQ) standards.

In 1991, OSHA put out a request for information, followed in 1994 with a proposed rule to govern the IAQ in workplaces within the United States. The proposal was highly political and contentious from the start because it focused primarily on
cigarette smoke. Consequently, Action on Smoking and Health (ASH), an anti-smoking advocacy group, sued OSHA to force the agency to finalize the rule. However, finalization of this political hot potato was not meant to be. In its most recent action on this contentious topic, OSHA withdrew its IAQ proposal and terminated the rulemaking proceedings last year.

OSHA justified this decision based on state and local laws, as well as private-sector action on second-hand smoke. Between 1994 and 2001, many states, local governments, and private employers took steps to regulate smoking in public areas, and in workplaces. OSHA found that withdrawal of the proposal would allow it to devote its limited resources to other projects.

Interestingly, anti-smoking groups appear now to support OSHA's withdrawal of the proposal. For example, the American Lung Association stated that since 1994 there has been a 50 percent increase in smoke-free workplaces. In another telling sign, ASH has dismissed its lawsuit against OSHA.


However, OSHA is likely to revisit the IAQ aspect of this debate soon. In addition to tobacco smoke, the proposed rule would have required employers to prepare and implement IAQ compliance plans. These plans included inspections and maintenance of building ventilation systems to maintain healthy air quality during renovation and related activities. OSHA said that little public comment was received on the non-tobacco portions of the proposal, and without more support, the basis for the proposed rule was lacking. The general business community opposed the proposed rule.

It is somewhat ironic that OSHA would abandon efforts to regulate IAQ at a time when the agency is under intense political scrutiny for its handling of the World Trade Center response and the cleanup afterwards. The withdrawal of the rule also came at a time when some IAQ issues, most notably, mold exposure, were nearing a crisis in this country.

Since a Texas court entered a $32 million judgment against the Farmers Insurance Co. involving a dispute over coverage for mold damage, insurance companies have been scrambling to exclude mold coverage from their policies. Several other million
dollar plus awards have been made in mold cases. Some insurers have gone so far as to stop writing homeowners policies in states most prone to mold growth, and hence mold claims.

In response to mold and other coverage issues, the cost of home and commercial insurance policies has skyrocketed, with premium increases approaching 50 percent in places. This bodes poorly for the economy in general, and especially for the health of American small businesses.

Several states and the U.S. Congress are debating new mold protection laws. California has enacted two new laws on the subject. OSHA now plans to develop non-regulatory guidance documents addressing IAQ.

At this time, OSHA would not say what areas of IAQ the guidance will address, what industries it will cover, or when such guidance will be released in either draft or final form. Whatever OSHA does on this topic in the future, it likely will impact
 general industry as a whole, including schools, office buildings, etc. It may impact the construction and maritime industries as well.

OSHA may extend beyond its usual reach with IAQ regulations applying not only to industries, offices, and schools, but the entire construction and maritime industries.

Source: Heating/Piping/Air Conditioning Engineering (HPAC)
Publication date: 2002-12-01


ASHRAE Provides Guidance on Odor Control in Smoking Spaces
Press Release - February 4, 2003

CHICAGO -- The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) will move forward with publication of an addendum to its ventilation standard that will make the standard's ventilation requirements apply only to non-smoking spaces and provide new design guidance for controlling odor in indoor spaces where smoking occurs.

ANSI/ASHRAE Standard 62-2001, Ventilation for Acceptable Indoor Air Quality, sets minimum ventilation rates and other requirements for commercial and institutional buildings.

The design guidance in addendum 62o addresses the use of ventilation to control odors from tobacco smoke but does not address health effects. It was approved for publication at ASHRAE's 2002 Annual Meeting, and six appeals later were filed.

ASHRAE denied the appeals at its 2003 Winter Meeting held here Jan. 25-29.

Addendum 62o deletes smoking lounges from a table on outdoor air requirements for ventilation. In the same table, the requirements in spaces where smoking is assumed to occur have been lowered, and a footnote is added explaining that the table applies to no smoking areas, according to Andrew Persily, chair of the 62 committee.

In addition, the addendum addresses ventilation in smoking areas by requiring these areas to have more ventilation and air cleaning than comparable non-smoking areas.

Addendum 62o also provides a method to allow designers to determine the additional ventilation over what would be provided in a similar non-smoking area for the purpose of odor control only, according to Persily.

Typically, the increase in ventilation is about 10 to 40 cfm/person over the non-smoking rate in spaces without heavy smoking, he said. The actual increase will depend on the smoking rate and occupancy density of the specific space.