"Indoor Air Quality
[IAQ] Already Regulated"

III Indoor Air Rev (Issue #3) 3 (April 1993)
Letter to the Editor

          Thank you for sending me the March issue of Indoor Air Review. I appreciate your invaluable work of informing your readers on point, including on tobacco smoking conduct (TSC).

I particularly noted your page 9 ("ASHRAE Helps Fill IAQ Void in Wake of Government Inaction") assertion that
"The failure of federal and state government to address indoor air quality has left much of the policing of the industry to voluntary standards organizations."

That statement particularly caught my eye as I am author of "Smoking as Hazardous Conduct," 86 N Y St J Med 493 (Sept. 1986). Therein I call attention to the fact that the federal government has indeed addressed indoor air quality via 29 CFR § 1910.1000, (the workplace safety regulation). The gravamen of my 1986 article is that tobacco smoking conduct [TSC] violates 29 CFR § 1910.1000. Its carbon monoxide is clearly far in excess of the legal limit.

Indeed, it is because TSC violates OSHA standards across the board that it is hazardous. If TSC had low levels of toxics, it would not be dangerous. The very first Surgeon General Report as long ago as 1964 lists tobacco chemicals at levels in excess of safe limits.

So I cannot agree that the federal government has failed to address indoor air quality. But on the other hand, of course, I must and do admit that it does nothing to "police" compliance. OSHA inspectors simply ignore the hazard. But that is a far different matter than saying there are no standards on point.

Additionally, your page 1 caught my eye in stating that Sen. Frank R. Lautenberg and Rep. Dick Durbin "have introduced proposals banning smoking in all federal buildings." Such proposals are obviously redundant and unnecessary. The law (5 USC § 7902.(d)) already orders the federal government to eliminate its hazards, which TSC clearly is. Once again, it is not that there is no law on indoor air quality; the problem is simply the utter disregard of the already extant law on point, i.e., the utter lack of "policing."

The solution is simpler, for the President to:

a. Order OSHA to enforce 29 CFR § 1910.1000 on TSC in the nation at large; and

b. Order federal agencies to eliminate TSC pursuant to 5 USC § 7902.(d).

I would . . . encourage you to solicit the input of Sen. Frank R. Lautenberg and Rep. Dick Durbin on point; perhaps they can be persuaded to introduce proposals to order OSHA and federal agencies to enforce the already extant rules.

Lastly, as TSC is the No. 1 cause of disability, thus causing high health care costs, I would encourage you to solicit the input of the President as well. Perhaps he will issue orders to OSHA and the federal agencies to enforce the pertinent rules immediately without awaiting a law directing them to do so.

Employers who refuse to obey the safety law on the No. 1 hazard identified by the Surgeon General typically have little regard for the rest of the safety issue. Safety laws are written in both general terms (words against jeopardizing safety) and in numeric terms, quantities of toxic chemicals shall not exceed X amount, in essence, a speed limit, a quantity limit. Employers must obey both the general words and the specific numerics.

An employer who said, 'we'll obey the number, not the general rule' was found guilty of noncompliance with both federal and state law when a Detroit-area worker was killed on the job as a result. The case citations are International Union, UAW v General Dynamics Land Systems Division, 259 US App DC 369; 815 F2d 1570 (1987) cert den 484 US 976; 108 S Ct 485; 98 L Ed 2d 484 (1987), and People v General Dynamics Land Sys Div, 175 Mich App 701; 438 NW2d 359 (1989) lv app den 435 Mich 860 (1990).

           We are all used to "speed limits." Cigarettes emit deleterious emissions that exceed the "speed limits" (official term: "Threshold Limit Value," TLV) for toxic chemicals in the air. These toxic emissions are due to cigarettes' inherently deleterious nature, emissions, and ingredients. The U.S. Department of Health, Education and Welfare (DHEW), Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service, PHS Pub 1103, Table 4, p 60 (1964), lists examples of deleterious emissions (citing the numbers above the chemicals' 29 CFR § 1910.1000 "speed limts") including but not limited to:

Cigarette ChemicalEmission Quantity
"Speed Limit" / TLV
acetaldehyde 3,200 ppm 200.0 ppm
acrolein 150 ppm 0.5 ppm
ammonia 300 ppm 150.0 ppm
carbon monoxide 42,000 ppm 100.0 ppm
formaldehyde 30 ppm 5.0 ppm
hydrogen cyanide 1,600 ppm 10.0 ppm
hydrogen sulfide 40 ppm 20.0 ppm
methyl chloride 1,200 ppm 100.0 ppm
nitrogen dioxide 250 ppm 5.0 ppm

           In this context, it is easier to understand why cigarette emissions are so fatal. The "speed limit" for carbon monoxide is about 100, whereas it's doing 42,000.

           All cigarettes contain deleterious ingredients. In fact, medically, cigarettes are inherently dangerous. This fact has received judicial notice in cases such as Banzhaf v F.C.C., 132 US App DC 14, 29; 405 F2d 1082, 1097 (1968) cert den 396 US 842 (1969). The Department of Health and Human Services (DHHS), Reducing the Health Consequences of Smoking: 25 Years of Progress: a Report of the Surgeon General, Publication CDC 89-8411, Table 7, pp 86-87 (1989), lists examples of deleterious ingredients including but not limited to:

acetaldehyde (1.4+ mg)arsenic (500+ ng)benzo(a)pyrene (.1+ ng)
cadmium (1,300+ ng)crotonaldehyde (.2+ µg)chromium (1,000+ ng)
ethylcarbamate 310+ ng)formaldehyde (1.6+ µg)hydrazine (14+ ng)
lead (8+ µg)nickel (2,000+ ng)radioactive polonium (.2+ Pci)

           Judicial notice of cigarettes' "inherent" deleteriousness was taken pursuant to an 1897 Tennessee law, in Austin v State, 101 Tenn 563; 566-7; 48 SW 305, 306; 70 Am St Rep 703 (1898) affirmed 179 US 343 (1900). The Michigan law specifying that only safe cigarettes can be manufactured, given away, and sold was passed soon thereafter, in 1909. The legal "right to fresh and pure air" existed long prior and is still being enforced, for example in the Shimp case, the Hall case, and the Perkins case.

           Thomas Edison exposed an aspect of the cigarette hazard in 1914. The cigarettes and cancer connection was published as long ago as 1925. The Michigan House of Representatives received a report on cigarette hazards over a century ago, in 1889.

Other Writings by Same Author

"Are You Missing $omething?,"
26 Smoke Signals 4 (Oct 1980)
(discusses cigarette costs to society, following my practice of
consolidating in one narrative, data from a multiplicity of sources,
refuting the then notion that cigarettes are a cost plus to society)

"Smoking as hazardous conduct,"
86 N Y St J Med 493 (Sep 1986)
(discusses workplace smoking as already illegal
pursuant to OSHA's 29 CFR § 1910.1000 emissions limits,
which cigarettes regularly exceed)

"Alternative Models for Controlling Smoking Among Adolescents,"
87 Am J Pub Health 869-870 (May 1997)
(discusses prevention of smoking among children
by doing for them as for all other people:
a law providing that only safe products
be manufactured, given away, and sold)

"Don't Hire Smokers: Here Is Why And How Not To Hire Smokers "
(cites precedents on the legal duty to not commit
personnel negligence/malpractice by hiring dangerous people:
obviously violated when smokers are hired as they are
foreseeably dangerous to themselves, others, and property)

Also Recommended Reading

Right of Employee to Injunction Preventing Employer
From Exposing Employee to Tobacco Smoke In Workplace
37 ALR4th 480

Plant and Job Safety—OSHA and State Laws
61 Am Jur 2d, §§ 1-130

Prof. William L. Weis and Bruce W. Miller,
The Smoke-Free Workplace
(Buffalo, NY: Prometheus Books, 1985),
esp ch 3-7 (costs) and 12 (hiring/transition practices).

Weis, William L., Ph.D., "Profits up in Smoke,"
60 Personnel J (Issue #3) 162-165 (March 1981)
personnel costs 20%
insurance premiums 30%
maintenance charges 50%
furniture replacement 50%
disability payments 75%
Smokers are ". . . distinguishable by
high rates of absenteeism,
early mortality and
low productivity . . ."

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Copyright © 1999 Leroy J. Pletten