HOUSE COMMITTEE ON ENERGY AND COMMERCE
                    HEALTH AND ENVIRONMENT SUBCOMMITTEE
                   STATEMENT OF HON. THOMAS J. BLILEY, JR.
                                JULY 21, 1993


        Mr. Chairman, I am testifying today in order to report to the 
Subcommittee the results of my extensive investigation of the EPA's handling 
of the controversy surrounding environmental tobacco smoke or "ETS".  As you 
know, in the past the Oversight and Investigations Subcommittee of this 
Committee has conducted hearings on EPA's abuses of government contracting 
requirements.  So pervasive is the level of abuse that Chairman Dingell has 
characterized EPA's pattern of contract mismanagement as a "cesspool".  EPA's 
Inspector General recently has confirmed that such abuses also have taken 
place in connection with a number of EPA contracts involving ETS, and the O 
and I Subcommittee's own investigation is continuing.

     In addition to various contractual improprieties, however, my own 
investigation suggests that in its consideration of ETS, the Agency has 
deliberately abused and manipulated the scientific data in order to reach a 
predetermined, politically motivated result.  EPA's risk assessment on ETS 
released in January of this year claims that ETS exposure is responsible for 
approximately 3,000 lung cancer cases per year in the United States.  
Analysis of the risk assessment reveals, however, that EPA was able to reach 
that conclusion only by ignoring or discounting major studies, and by 
deviating from generally accepted scientific standards.

     EPA's willingness to distort the science in order to justify its 
classification of ETS as a "Group A" or "known human" carcinogen seems to 
stem from the Agency's determination early on to advocate smoking bans and 
restrictions as a socially desirable goal.  EPA began promoting such policies 
in the mid-to late 1980s, ostensibly as part of its efforts to provide 
information to the public on indoor air quality issues.  The Agency then 
decided to develop the ETS risk assessment to provide a scientific 
justification for smoking bans.  The risk assessment thus was never intended 
to be a neutral review and analysis of the ETS science. Rather, it was 
intended from the start to function as a prop for the Agency's predetermined 
policy.

     Not surprisingly, therefore, the process at every turn has been 
characterized by both scientific and procedural irregularities.  In addition 
to the contracting violations mentioned at the outset, those irregularities 
include conflicts of interest by both Agency staff involved in preparation of 
the risk assessment and the members of the Science Advisory Board panel 
selected to provide a supposedly independent evaluation of the document.  I 
will not itemize each and every one of these improprieties.  Instead, I ask 
consent that a memorandum providing full details of the history of EPA's 
handling of ETS be included in the record.  The memorandum summarizes the 
results thus far of my investigation into the Agency's handling of ETS and is 
based on publicly available documents, extensive correspondence between 
myself and former Administrator Reilly, and interviews conducted by my staff 
with the responsible EPA officials.

     The ETS risk assessment is far from an isolated example of EPA's 
approach to the use of science in policy making.  The Agency's propensity to 
scare the public first and ask scientific questions later is both notorious 
and well-documented.  Alar, dioxin and the removal of asbestos from schools 
are other examples.  In fact, concern that EPA's pursuit of media headlines 
rather than good science was undermining the Agency's credibility caused 
former Administrator Reilly to convene an expert panel in early 1991 to 
assess EPA's use of science.  The expert panel issued a report in March 1992 
entitled "Safeguarding the Future:  Credible Science, Credible Decisions."  
The report states that "[c]urrently, EPA science is of uneven quality and the 
Agency's policies and regulations are frequently perceived as lacking a 
strong scientific foundation."  The expert panel also cautioned EPA, in terms 
that are directly relevant to the Agency's work on ETS, that "science should 
never by adjusted to fit policy, either consciously or unconsciously."  
Unfortunately, in the case of ETS there appears to have been a conscious 
misuse of science and the scientific process to achieve a political agenda 
that could not otherwise be justified.

     EPA betrays its own lack of confidence in its tortured statistics by
refusing to incorporate the results of the ETS-lung cancer study by Brownson
and coworkers.  The Brownson study, one of the largest and best designed
studies ever conducted, was funded in part by the National Cancer Institute.
The study looked at exposure to ETS in a variety of settings, at home, at work
and in social environments.  The study reported no significant association
between ETS and lung cancer among nonsmokers in spousal or work settings or
from childhood.  Even using the highly questionable statistical methods adopted
by EPA in the ETS risk assessment, inclusion of the Brownson study would show
no significant risk of lung cancer from exposure to ETS.

     Evidently, publication of the Brownson study caused no small degree of 
consternation at EPA.  In order to avoid incorporation of the Brownson 
study's results into the risk assessment and invalidating EPA's claim that 
the epidemiology shows a significant risk, EPA rushed to issue the final 
report in early January.  Mr. Chairman, given this sort of behavior, in my 
judgment we must be very cautious about allowing scientific pronouncements 
from EPA to drive public policy decisions.

______________________________________________________________________________


                        EPA AND ENVIRONMENTAL TOBACCO
                         SMOKE: SCIENCE OR POLITICS?



I.   INTRODUCTION

                With almost unprecedented fanfare, the Environmental 
Protection Agency ("EPA") released at a news conference on January 7, 1993, 
a risk assessment on tobacco smoke in the air -- often referred to as 
environmental tobacco smoke ("ETS").  According to the EPA risk assessment, 
ETS is a "Group A" or "known human" carcinogen that is responsible each year 
for approximately 3,000 cases of lung cancer among nonsmokers residing in the 
United States.  The risk assessment also claims that ETS is a cause of 
respiratory problems in infants living in homes in which one or both parents 
or some other family member smokes.
                      
                Not surprisingly, the claims contained in EPA's risk 
assessment on ETS generated substantial publicity, with most major 
newspapers, television news program and radio stations devoting substantial 
attention to EPA's conclusions.  The publicity was, in part, a natural and 
expected response to the rather dramatic claims made in the EPA report.  But 
EPA officials and staff, joined by Secretary Sullivan of the Department of 
Health snd Human Services ("HHS"), also left no stone unturned to ensure 
heavy media coverage of the report. The EPA/HHS campaign was seeded by 
periodic "leaks" of drafts of the report, and those leaks were followed with 
a heavily promoted press conference and individual interviews.
           
                The EPA/HHS representatives made clear at their January press 
conference that they hoped that the EPA report would lead to additional 
smoking restrictions by private entities as well as by government at all 
levels.  If the conclusions of the report are valid, that hope is certainly 
understandable.  At the same time, however, if the claims made in the report 
are invalid, as appears to be the case, the likely consequence will be 
additional unjustified harassment of and discrimination against smokers -- a 
consequence that received little attention at the January press conference.
           
                The assumption that often is made is that smoking 
restrictions and other comparable measures are essentially costless.  
Increasingly, that assumption has been shown to be incorrect.  Whether 
measured in terms of the number of people who are fired or are not hired 
because they smoke, by unjustified feelings of guilt among smokers or by the 
erosion of courtesy and tolerance, the campaign against smoking is not the 
no-lose proposition it often is portrayed as being.
           
                In Washington, D.C., for example, which has adopted workplace 
smoking restrictions, the consequences of the ETS controversy are 
unmistakable.  At all hours of the working day, people can be seen, even in 
the middle of winter, huddled near the doorways of office buildings smoking 
cigarettes.  In fact, some employers -- in Washington, D.C., and elsewhere -- 
have gone so far as to require current and prospective employees to submit to 
a urine test, looking for the telltale sign of nicotine.
           
                Over the past several years there has been increasing 
concern about the politicization of science and other problems at EPA.  A 
two-year investigation by the Subcommittee on Oversight and Investigations of 
the House Energy and Commerce Committee has uncovered disturbing evidence 
encompassing everything from cronyism in the award of government contracts to 
systematic bias in the collection, review and presentation of scientific 
data.  Instead of evaluating scientific issues objectively and providing 
balanced information to the public, EPA has been found on a number of 
occasions to have manipulated or suppressed data in a manner that has 
resulted in unnecessary alarm and confusion.
           
                Mounting concern about EPA's misuse of science prompted 
former EPA Administrator William Reilly to convene an expert panel in 1991 to 
review EPA's handling of scientific issues and to recommend improvements.  
The expert panel, which was comprised of eminent scientists from leading 
institutions across the country, issued a report in March 1992 entitled 
"Safeguarding the Future: Credible Science, Credible Decisions."  The report 
confirmed that, "[c]urrently, EPA science is of uneven quality, and the 
Agency's policies and regulations are frequently perceived as lacking a 
strong scientific foundation" (p. 4).
 
                The expert panel also cautioned EPA that "science should 
never be adjusted to fit policy, either consciously or unconsciously" 
(p. 38).  Unfortunately, that is precisely what appears to have happened in 
the case of the risk assessment on ETS -- the abuse of science and the 
scientific process to further a political agenda.  However one views 
cigarettes and smoking, EPA's misuse of science and disregard for proper 
legal and scientific procedures should be cause for alarm.  In fact, EPA's 
handling of ETS sets a disturbing precedent for the Agency's consideration of 
future controversial scientific questions, raising questions about EPA's 
ability to separate science from politics in carrying out its mission.
           
                As the editor of "EPA Watch" recently observed in response to 
EPA's release of the ETS report:
 
                It's now open season on whatever contam-
                inant the EPA chooses to label the killer
                contaminant of the week, with the effect
                that once again, Americans are going to be
                stampeded into fearing a substance for
                reasons which upon close inspection are
                scientifically indefensible.(1)

                The discussion that follows describes EPA's activities with 
respect to ETS -- the procedures the Agency has utilized and the problems 
that have infected the process from the beginning.


II.  THE HISTORY OF EPA'S INVOLVEMENT IN THE ETS CONTROVERSY

     A.  Putting EPA's Role Into Context

          In order to understand EPA's role in the ETS controversy, one must 
understand how the "passive smoking" issue emerged in the first place.  
According to Richard Daynard, a well-known antismoking activist, the 
organized movement to eradicate smoking has proceeded in three distinct 
phases.(2)  During the first phase, activists attempted to persuade smokers 
to stop smoking on the ground that smoking was bad for the smoker.  Although 
many smokers did stop smoking for that reason, others continued.  During the 
second phase, activists attempted to make smokers feel guilty about their 
enjoyment of smoking.  Again, however, many individuals continued to smoke.  
The third and current phase, according to Daynard, marked a more fundamental 
strategic shift.  In this phase, the movement began to focus on the 
"development" of "evidence" about ETS.  If people can be persuaded to believe 
that tobacco smoke is harmful to nonsmokers, it becomes easier to persuade 
both private entities and government authorities to restrict or ban smoking.  
According to Stanton Glantz, founder of Californians for Nonsmokers' Rights 
(later christened Americans for Nonsmokers' Rights), the target of such laws 
is the smoker rather than the nonsmoker.  "Although the nonsmokers' rights 
movement concentrates on protecting the nonsmoker rather than on urging the 
smoker to quit for his or her own benefit, [antismoking legislation] reduces 
smoking because it undercuts the social support network for smoking by 
implicitly defining smoking as an antisocial act."(3)
          
                 Neutral and dispassionate scientific inquiry often yields 
inconvenient results from the perspective of the social activist.  So it has 
been for EPA with Alar, PCBs and dioxin, to cite only a few examples.  ETS 
must now be added to the list.
           
                The scientific data simply do not support EPA's 
classification of ETS as a "Group A" carcinogen.  Of the more than 30 
epidemiologic studies of marriage to a smoker and lung cancer among 
nonsmokers, the overwhelming majority report no statistically significant 
association.  The studies focusing on ETS exposure in the workplace also 
generally have not reported a statistically significant increased risk.  The 
most recent and largest U.S. case control study, by Brownson and coworkers, 
confirms the general no-association pattern.(4)  Although the Brownson study 
was published in November 1992, two months before EPA completed its report on 
ETS, the EPA report failed even to cite the Brownson study.  The reason, 
undoubtedly, is that EPA's conclusions on lung cancer could not survive 
inclusion of the Brownson data.
           
                Even without the Brownson data, the classification of ETS as 
a Group A carcinogen required substantial stretching by EPA.  To reach that 
conclusion, the EPA report combined eleven spousal smoking studies from the 
United States in a so-called "meta-analysis."  Of the eleven studies, 
however, ten reported no statistically significant increase in cancer among
nonsmokers purportedly exposed to ETS.  To ensure that the meta-analysis 
would produce the desired results, therefore, EPA had no choice but to 
manipulate the numbers.
           
                Although in the past EPA and the scientific community  have 
used a 95% confidence interval as a means of ensuring that study results did 
not occur by chance, EPA adjusted the confidence interval downward -- to 
90% -- in its report on ETS.  As James Enstrom, an epidemiology professor at 
the University of California, Los Angeles, explained, "[t]hat doubles the 
chance of being wrong."(5)  To put it in lay terms, EPA's statistical 
maneuvering is the equivalent of moving the goal lines at a football game in 
order to score more touchdowns.  The implications of EPA's willingness to 
lower scientific standards in selected cases are profoundly troubling.  As 
Michael Gough of Congress's Office of Technology Assessment has pointed out, 
"[y]ou cannot run science with the government changing the rules all the 
time."(6)
           
                The only claim made in the EPA report for which there is at 
least statistical support is that ETS can affect the respiratory health of 
very young children.  Most of the studies on that issue are so flawed, 
however, that it is premature to conclude that the association is causal in 
nature.  In the final analysis, it must be remembered that epidemiologic 
studies can show only a statistical association.  They cannot prove 
causality.  After all, there is a strong association between increased life 
expectancy and increased consumption ofjunk food in affluent countries but no 
one contends that one is the cause of the other.  In fact, many argue the 
converse.(7)
 
                In light of the weaknesses in the pertinent data, the 
procedures that have been utilized in "developing the case against ETS" take 
on a special significance.  As one of the world's leading epidemiologists, 
Dr. Alvan Feinstein of Yale University Medical School, put it in a recent 
article:
 
                In the investigations of [ETS], * * * the
                various studies are contradictory, some
                going in positive directions and others
                not.  The inconvenient failure of the
                evidence to comply with a prime requisite
                of scientific reasoning for causality,
                however, has not inhibited the causal
                accusations.  The "prosecution" has simply
                ignored the inconvenient results and
                emphasized those that are (in a memorable
                term) "helpful."(8)
          
                A report produced by the Advocacy Institute, a major
antismoking organization, entitled "Media Strategies for Smoking Control: 
Guidelines" (NIH 1989), provides a striking illustration of this strategy.  
Behind every story detailing the "risks" of ETS, the report stated, could be 
found "[a] scientist wise in the way of 'creative epidemiology,' i.e., the 
presentation of data -- both scientifically sound and artful -- so as to 
catch the glint of media attention * * *" (NIH Report at 7).  The report 
describes "creative epidemiology" as follows:
 
                Michael Daube, who coined the term,
                defines creative epidemiology as "the
                ability of the good epidemiologist to
                rework data so that what is essentially
                the same information can be presented in a
                new and interesting form."  Thus creative
                epidemiology marries the science of the
                researcher with the art and creativity of
                the media advocate (id. at 21-22).
          
                Similarly, Jonathan Samet of the University of New Mexico 
recently acknowledged that there is much that we do not know and indeed may 
never know about whether ETS poses a health risk.  Notwithstanding those 
evidentiary deficiencies, however, Dr. Samet made clear that "[i]n the case 
of environmental tobacco smoke, it would be unfortunate if potentially 
irresolvable scientific uncertainties thwarted control."(9)
          
                As a result of this strategy, there is enormous pressure on 
researchers and scientific bodies investigating ETS to come up with the 
"right" conclusion.  The Brownson study, for example, apparently caused 
considerable dismay because it produced the "wrong" results.  Defending his 
decision to publish the study, Dr. Brownson lamented, "I wish our findings 
had gone in the exact pattern the public health community would like * * *.  
But one of the criticisms of medical research is that the only thing findings 
ever show is some kind of health risk.  I feel it's important to publish 
findings, no matter what they show."(10)  Dr. Brownson's eagerness to please 
the public health community is widely shared.  His willingness to release 
data not in accord with the political objectives of that community 
unfortunately is not.
 
                Again, Dr. Feinstein of Yale has offered a revealing insight.  
According to Dr. Feinstein:
 
                [I]n the current fervor of anti-smoking
                evangelism, what young scientists would
                want to risk their career and what older
                scientists would want to risk their
                reputation by doing anything that might be
                construed as support for the "bad guys" of
                the tobacco industry?  What governmental
                agency would fund research in which the
                established "accepted" anti-smoking
                doctrines were threatened by a study
                proposed by someone -- an obviously
                deranged skeptic -- who wanted to do an
                unbiased, objective investigation?
                (p. 304).

In the same article, Dr. Feinstein revealed that he "recently [had] heard an 
authoritative leader in the world of public health epidemiology make the 
following statement:  "Yes, it's rotten science, but it's in a worthy cause.  
It will help us get rid of cigarettes and become a smoke-free society" 
(p. 303).
           
                Because the debate over ETS has been caught up in the larger, 
highly emotional controversy about active smoking, the role of EPA in 
collecting, evaluating and disseminating scientific information about ETS 
becomes even more important. The Superfund Amendments and Reauthorization Act 
of 1986 ("SARA") gave EPA the role of "providing information and guidance" to 
the public on indoor air and radon.  42 U.S.C. Sec. 7401 note.  SARA required 
EPA's research agenda to be reviewed by the Agency's independent Science 
Advisory Board ("SAB").  The SAB consists of scientists from outside EPA 
whose role is to assess the factual and theoretical bases for EPA's research 
and reports.  The SAB is supposed to operate as a check on the Agency's use 
of science in the formulation of regulatory policy -- to ensure that 
objective scientific inquiry is not subverted to serve political rather than 
scientific ends.  Unfortunately, the SAB has not operated as intended in the 
case of ETS.  As a result, there has been little or no brake on the 
antismoking proclivities of individual EPA staff members.
        
        B.   Early EPA Staff Initiatives Concerning ETS

                EPA's policy of promoting restrictions on smoking seems to 
have begun with James L. Repace, an "environmental protection specialist" in 
EPA's Indoor Air Division.  In 1980, even before the first major ETS health 
claims appeared in the scientific literature, Repace wrote with A.H. Lowrey 
an article reporting on particulate matter in the air of various environments 
such as bars, restaurants and bingo parlors, without distinguishing whether 
those particulates were from ETS or some other substance or activity.(11)  
The only "office" measurements made by Repace were in an experimental, 
enclosed room in which thirty-two cigarettes were smoked in less than one 
hour, generating ETS levels grossly in excess of those encountered in the 
real world.  Subsequent research has discredited both the methodology and 
concluslons of the 1980 Repace study.(12)  On the basis of these 
observations, however, the article claimed that "indoor air pollution from 
tobacco smoke presents a serious risk to the health of nonsmokers * * * 
[that] deserves as much attention as outdoor air pollution."(13)
           
                A few years later, Repace published (again with A.H. Lowrey) 
an article purporting to show that ETS was riskier than "all regulated 
industrial emissions combined."(14)  This second article by Repace and 
Lowrey, which represented a crude attempt at quantitative risk assessment, 
has been roundly criticized by both government and private sector 
scientists.(15)
           
                Repace's extensive work with political advocacy organizations 
such as the Group Against Smoke Pollution ("GASP") and Action on Smoking and 
Health ("ASH") and his private and professional focus on smoking raise 
questions about Mr. Repace's ability to evaluate indoor air issues in a 
balanced manner.  Since the 1970s, Mr. Repace also has been appearing as a 
paid witness in numerous lawsuits and testifying before various legislative 
bodies to support governmental restrictions on smoking.  Consider in this 
regard Mr. Repace's statements to the press in reaction to the defeat of an 
antismoking legislative proposal in Maryland:
 
                People aren't going to stand for this.
                Now that the facts are clear, you're going
                to start seeing nonsmokers becoming a lot
                more violent.  You're going to see fights
                breaking out all over.  Washington Star,
                April 5, 1980, p. D-l.
          
                Based on my own experiences with Mr. Repace, I do not find 
these accounts surprising.  In 1991, at the invitation of EPA Administrator 
Reilly, my staff interviewed several EPA employees as part of my and the 
Oversight Committee's efforts to gather the facts about EPA's procedures in 
preparing ETS-related documents.  When he presented himself in my office, 
however, Mr. Repace categorically refused to answer any questions.  He was 
accompanied by John Banzhaf, ASH's Executive Director, and Mr. Nantkes of the 
EPA General Counsel's office.  Both were said to be serving as Mr. Repace's 
attorneys.  Within minutes after Mr. Repace left my office, my staff received 
inquiries from the media characterizing my efforts as "intimidation."  

                During the late 1980s, Mr. Repace became the driving force 
behind EPA's push to classify ETS as a "Group A" carcinogen.  He began by 
outlining plans for two reports designed to promote the elimination of ETS.  
Although his plans personally to draft a "handbook" on the subject were not 
realized, Repace assumed primary responsibility for two longterm projects -- 
an "ETS literature compendium" and an "ETS workplace smoking policy guide," 
as well as a smaller project, an "ETS fact sheet."  These projects were meant 
to further the agenda first announced in Repace's 1980 article.
           
                Even as Mr. Repace expanded his activities within the Indoor 
Air Division, he was traveling around the world, at the invitation and 
expense of smoking organizations, to appear at various conferences and media 
events to promote antismoking restrictions.  For example, Mr. Repace traveled 
to New Zealand in l990 to support antismoking legislation in that country.
Press coverage of his activities there was typical of Mr. Repace's media 
appearances, including the identification of Mr. Repace as an EPA employee 
unaccompanied by the required disclaimer that his views did not then reflect 
an official EPA position.
           
                In numerous media interviews, Mr. Repace has made the 
baseless assertion that 50,000 people in the U.S. die each year from exposure 
to ETS and has left the clear impression that these views reflect EPA's 
official position rather than his personal views.  Such demonstrated bias 
would create a serious conflict of interest issue at any regulatory agency, 
apparently with the exception of EPA, most likely leading to the official's 
recusal from further involvement in the issue in question.  In fact, Mr. 
Repace continued to play a key role in the preparation of documents for the 
public that were represented as neutral and dispassionate analyses of the 
facts pertaining to ETS despite the advocacy role he was playing in his 
"private capacity."
 
        C.   How EPA Used Its Role In Indoor Air Research
             To Further An Antismoking Agenda

                1.   The ETS "Fact Sheet"

                In 1989, Repace prompted the Agency's publication of a "Fact 
Sheet" on ETS.  Despite its name, "Indoor Air Facts Number 5" made 
extravagant health claims about ETS, going far beyond the conclusions of the 
1986 reports of the National Academy of Science ("NAS") and Surgeon General 
on the same subject.  For example, it claimed that exposure to ETS was linked 
to heart disease, when both the NAS and Surgeon General had found that the 
available studies did not support that claim.
           
                The "Fact Sheet" also took certain statements in the 1986 
Surgeon General's report out of context in order to claim a consensus that 
"passive smoking significantly increases the risk of lung cancer in adults" 
(p. 1).  Whereas the Surgeon General and NAS reports had emphasized critical 
limitations on their findings of a possible connection between exposure to 
ETS and lung cancer, the "Fact Sheet" ignored those limitations and treated 
the purported relationship as irrefutable.
 
          The "Fact Sheet" also failed to note that even the limited 
conclusions of the Surgeon General and NAS reports had been strongly 
criticized and that other reviewers -- including the World Health 
Organization's International Agency for Research on Cancer -- had reached 
different conclusions based upon the same data.  See, e.g., "IARC Monograph 
on the Evaluation of the Carcinogenic Risk of Chemicals to Humans:  Tobacco 
Smoking," vol. 38, p. 308 (1986).  Furthermore, a number of other studies and 
reviews published since 1986 contradicted the findings of the Surgeon General 
and NAS reports with respect to the purported relationship between ETS and 
lung cancer.(16)  None of these was mentioned in the "Fact Sheet."
           
                Finally, the "Fact Sheet" characterized ETS as "a major 
contributor of particulate indoor air pollution" (p. 2) while failing to 
mention the numerous studies showing that inadequate ventilation is the 
single most important cause of indoor air pollution.  Significantly, no SAB 
panel or expert committee ever reviewed the "Fact Sheet's" claims.  Instead, 
the document was distributed freely to the public as if it contained the 
official, carefully considered policy of the U.S. government rather than 
simply the personal opinions of Mr. Repace.
           
                2.   What EPA Doesn't Know
           
                Paradoxically, EPA elsewhere was quite candid in 
acknowledging the gaps in its knowledge about ETS.  EPA's 1987 report to 
Congress, for example, recognized that indoor air quality is not only a 
matter of specific pollution sources but also of the ways in which buildings 
are designed, operated and used.  EPA's indoor air quality program 
purportedly was designed to "address the problem from both perspectives" 
(P. 8).

                In its 1989 report to Congress, EPA indicated that it had 
"moved to establish a research program to remove the scientific 
uncertainties" identified in the 1986 NAS report on ETS (vol. I, p. 42).  In 
the same report EPA acknowledged that "[a]ctual human exposure to many of 
these [indoor air] pollutants is at this time not well understood" (vol. III, 
p. 11).   The 1989 report also emphasized the need for ventilation research, 
noting that the "entire building system is implicated in issues of indoor air 
quality" (vol. III, p. 39) and that much more research is needed concerning 
the numerous variables that determine indoor air quality (id. at 36-39).
           
                At this point, I, among others, expressed concern that there 
appeared to be a contradiction between EPA's conclusions on ETS in the "Fact 
Sheet" and the Agency's recognition elsewhere that there were large gaps in 
its knowledge about ETS.  In response, EPA's Assistant Administrator for Air 
and Radiation, William Rosenberg, denied that there was any scientific doubt.  
In a June 1989 letter to Senator Warner of Virginia, Mr. Rosenberg stated 
that "[t]he evidence, in our view, is conclusive for lung cancer and for
respiratory symptoms in children" and that "ETS has been shown to cause 
cancer and other health effects in healthy nonsmokers."
           
                The "Fact Sheet" and Mr. Rosenberg's letter make clear that 
the Agency had reached firm conclusions concerning ETS without the benefit of 
either SAB review or public comment.  Aside from the question of whether this 
position was scientifically justified, it is unclear why the Agency then 
decided to spend millions of dollars to conduct a formal "risk assessment" on 
ETS for the ostensible purpose of determining whether ETS does indeed pose a 
risk to health.
           
                3.   The ETS Technical Compendium
           
                In November 1989, EPA released a draft ETS "technical 
compendium," the second of the Agency's documents concerning ETS.  Conceived 
originally as a reference document, the compendium consisted of ten (later 
eleven) chapters on a variety of subjects not always directly related to ETS.  
With the exception of a draft chapter on "Exposure Assessment of Passive 
Smoking" by Mr. Repace, the compendium articles were solicited from 
scientists and consultants outside the Agency.
           
                Although ostensibly a collection of scientific information 
about ETS, the first chapter, written by Thomas E. Novotny, claimed, based on 
public opinion polls, that the public increasingly believes that ETS is 
harmful to health and therefore supports smoking restrictions.  But public 
opinion and acceptance of smoking restrictions are obviously irrelevant to 
the scientific and technical issues of whether the restrictions are justified 
in the first place.  In addition, public opinion on scientific issues often 
is shaped by dramatic reporting, not by familiarity with the science itself.  
EPA scientists should have recognized that using public opinion to support a 
scientific hypothesis -- and ultimately, new regulations -- was 
irresponsible.  That is particularly so when individual agency employees had 
played such a pivotal role in forming the very public opinion upon which they 
now were proposing to rely.
           
                In addition to the chapter on trends in public attitudes, the 
compendium contained other articles on active smoking and on economic issues 
surrounding workplace smoking.  The only unifying theme of the compendium is 
that, in the Agency's view, smoking and ETS are "bad."  Like most of the 
Agency's outside contractors on ETS, many chapter authors for the compendium, 
including Stanton Glantz, Jonathan Samet, and, of course, James Repace -- had 
long been active in the antismoking movement.
           
                Although styled (and later defended by the Agency) as a 
scientific reference document, the compendium was in fact designed as an 
advocacy document for smoking restrictions.  The preface to the compendium 
indicated that it was intended to be distributed to scientists, public 
officials, legislators and those in the private sector who are or may be 
concerned about ETS.  The overall purpose was to "provide information 
necessary to allow the public, government agencies, and the building industry 
to make well-informed choices regarding exposure to ETS" (p. 2).  The letter 
accompanying the draft compendium indicated that the compendium was an 
"integral component of [EPA's] ETS strategy," which was to include a separate 
"policy-maker's guide" that in turn would be a simplified version of the 
compendium.
           
                It is hard to see how policymakers could make "well informed" 
choices on the basis of the information contained in the compendium or the 
simplified version known as the "policy guide."  Both the compendium and the 
policy guide were initiated and drafted long before the Agency had prepared a
formal risk assessment on ETS.  By these actions, EPA violated the public 
trust in three ways.  First, EPA conducted an end run around the statute 
creating the SAB review mechanism.  In doing so, it not only threatened the 
integrity of the SAB review process but ran the risk of alarming the public 
for no good reason.  In addition, EPA deliberately permitted policy to drive 
science rather than the other way around.  As the "Fact Sheet" demonstrated, 
EPA started with the restrictive policy it wanted to promote and then worked 
backward to "develop" the scientific conclusions necessary to justify that 
policy.  Finally, even though it has no statutory authority to regulate 
smoking, EPA's Indoor Air Division sought to become the de facto federal ETS 
regulatory authority by using the "Fact Sheet," the compendium, the policy 
guide and the ETS risk assessment to frighten employers and state and local 
regulators into imposing additional restrictions on smoking.
           
                4.   Bias In Preparing The Compendium

                Although still in draft form and not reviewed by the SAB, the 
compendium received widespread media attention.  Robert Axelrad, Director of 
the Indoor Air Division, had asserted unequivocally in a May 8, 1990, letter 
to The Tobacco Institute's counsel that EPA was "not interested in promoting
any media attention to the documents while they are in draft form and will do 
everything possible to assure that they are not construed as EPA policy."  
Notwithstanding Mr. Axelrad's assurances, the compendium was leaked to the 
press and its more sensational claims openly publicized prior to any 
scientific review of the document's contents.  According to a February 1993 
report by the General Accounting Office ("GAO"), EPA staff in April 1991, 
before EPA had completed its own internal review of the document, improperly 
sent a draft of the compendium to several external reviewers, including 
Stanton Glantz.  Glantz, an outspoken antismoking activist since the 1960s, 
immediately proceeded to provide a copy to an Associated Press reporter.  
According to the GAO, Glantz claims that his release of the report was simply 
a "mistake."
           
                Most disturbing was the public dissemination of the chapter 
on cardiovascular disease.  Glantz, one of the authors of that chapter, 
appeared in Boston -- again with James Repace -- at the World Conference on 
Lung Health in late May 1990 and gave both a presentation and news interviews 
on that chapter.  Dr. Glantz used the occasion to repeat and underscore the 
unsupported claim that more than 30,000 nonsmoking Americans die of heart 
disease each year as a result of exposure to ETS.
           
                This activity made a mockery of EPA's procedures for ensuring 
that its policy documents receive a full and fair review before they are 
finalized.  Glantz has a long record of public statements demonstrating his 
commitment to that political agenda, notwithstanding the lack of scientific
support for his claims concerning ETS.  While his training is in mechanical 
engineering rather than medicine or some other relevant discipline, he has 
pontificated on every conceivable smoking-related topic, such as advertising 
and economic issues, about which he plainly can make no claim to professional 
competence.
 
                To cite one example, Dr. Glantz's organization stated in its 
1983 annual report that "irrefutable medical and scientific evidence has 
confirmed what millions of nonsmokers have intuitively known for a long time:  
Tobacco smoke * * * poses a serious health risk for nonsmokers who breathe
secondhand smoke."  Thus, Dr. Glantz's mind was closed on the 
ETS/cardiovascular disease issue three years before the 1986 reports of the 
Surgeon General and National Academy of Sciences both determined that there 
was insufficient evidence to support the claim that exposure to ETS presents 
any increased risk of heart disease.
           
                At an April 1990 antismoking conference in Perth, Australia, 
Glantz made a series of revealing comments.  First, he noted that "it's very 
nice to see that the same ideas that a few of us were advocating in 1983 
which were viewed as so strange, radical and hopeless have now really become 
very mainstream."  A self-described "lunatic" on the issue, Dr. Glantz then 
excoriated the American Cancer Society for its alleged decision to terminate 
an employee for intemperate behavior in connection with a local smoking 
ordinance.  "He [the employee] may be a little impolitic which I of course 
view as a plus.  But you know activists need [to be] rewarded[.] * * * I had 
no objection to all the people who were given awards on the first day [of the 
conference], but I did notice that there was not a single lunatic among 
them * * *."  He further confessed that "[t]he main thing the science has 
done on the issue of ETS, in addition to help people like me pay mortgages, 
is it has legitimized the concerns that people have that they don't like 
cigarette smoke.  And that is a strong emotional force that needs to be 
harnessed and used."  Glantz concluded by stating that "we are all on a roll 
and the bastards are on the run and I urge you to keep chasing them."
           
                I expressed my concern to Mr. Reilly that the selection of 
Dr. Glantz to write part of the ETS compendium was a grave error in judgment.  
Glantz's involvement, coupled with leaks of information and inadequacies in 
the review process, led me to conclude that the Agency's procedures had been 
seriously compromised.
           
                In response, Mr. Reilly assured me that the SAB would be 
given an opportunity to review the technical compendium and that EPA had not 
yet decided whether Glantz's chapter would be included in it.  Ultimately, 
however, the technical compendium was not reviewed by the SAB and Mr. Reilly 
subsequently took the position, contrary to the Agency's prior statements, 
that the compendium was not a basis for the policy guide or risk assessment.
 
                5.   EPA Reneges On Its Pledge To Permit The
                     SAB To Review The Technical Compendium

                Despite Mr. Reilly's repeated oral and written assurances, 
the SAB was never given an opportunity to review the compendium.  In early 
1991, EPA switched course and began to act as if the compendium had never 
been written.  In a letter to me, Mr, Reilly claimed that SAB review of the 
compendium was unnecessary since the compendium had "no direct bearing on 
future agency action."  When he was questioned by the House Commerce 
Committee's Subcommittee on Health and the Environment in April 1991, EPA's 
Deputy Administrator Henry Habicht could only say the compendium was "on a 
separate track."
 
                That the technical compendium got onto "a different track" is 
curious, considering especially that when the SAB finally did review the 
policy guide in December 1990, it requested a "supporting document that 
explicitly states the technical basis for each of [the policy guide's] 
summary statements on the state of scientific knowledge."  As noted above, 
EPA originally intended the policy guide to be a simplified version of the 
compendium.  When I asked Mr. Reilly "[w]hat led the agency to redefine the 
role of the technical compendium," the answer was that the media had 
interpreted its release to the public as EPA endorsement of the draft 
document's content.  As EPA staff had rather disingenuously told the media at 
the time the compendium was leaked, that interpretation was inappropriate.  
The Associated Press reported on May 29, 1991 that --
 
                [m]uch of the controversy over the report
                has focused on the estimate of 37,000
                heart disease deaths attributed to
                secondhand smoke.  That section was
                written by Stanton Glantz and Dr. William
                Parmley of the University of California,
                San Francisco.

                "Thirty-seven thousand may be a figment of
                Stan Glantz's imagination and William
                Parmley's imagination, or it may be a real
                estimate," said Axelrad [Director of EPA's
                Indoor Air Division].

                "Any effort or any attempt to imply any
                kind of endorsement or acceptance by EPA"
                of the death estimates in the technical
                compendium "is at this time totally
                inappropriate," he said.
          
        D.   The ETS "Policy Guide"
          
                In June 1990, EPA released formally the first draft of its 
policy guide, entitled "Environmental Tobacco Smoke:  A Guide to Workplace 
Smoking Policies."  The guide's stated purpose was to provide government and 
private sector decision makers with information on the technical basis for 
controlling exposure to environmental tobacco smoke and to describe a variety 
of technical and policy options for instituting effective smoking 
restrictions.
          
                It has never been clear why EPA prepared and released a risk 
management document like the policy guide and before that, the "Fact Sheet" 
and compendium, in advance of any final scientific assessment of the supposed 
"risk" to be managed.  Ordinarily, an agency concerned with public health 
responds to allegations that a particular substance presents a risk to health 
by conducting a formal analysis of the scientific data called a "risk 
assessment."  This assumes, of course, that the agency has statutory 
authority to regulate that substance.  If the risk assessment justifies the 
conclusion that a significant risk exists, the next step is to develop 
policies or regulations to mitigate that risk.  As the National Academy of 
Sciences/National Research Council has recognized, risk assessment is 
concerned with defining the health effects of exposure to hazards, while risk 
management is the process of selecting the most appropriate policy 
alternative by integrating risk assessment results with engineering data and 
social, economic and political concerns.(17)
           
                Obviously, if the risk from ETS at levels typically 
encountered in the workplace was found to be minimal, there would be no 
justification for recommending, as did the "Fact Sheet" and policy guide, 
that smoking be prohibited except in separately ventilated areas.  Even 
Administrator Reilly recently conceded in a letter to me that "beginning the 
development of an Agency risk assessment after the commencement of work on 
the draft policy guide gave the appearance of the very situation -- i.e., 
policy leading science -- that I am committed to avoid."
           
                Equally troubling is the fact that the guide even went so far 
as to encourage ETS-based lawsuits by employees against their employers.  In 
doing so, the policy guide grossly overstated the legal significance and 
precedential value of the handful of cases favorable to the policy guide's 
viewpoint while understating the significance of the vast majority of others, 
which were not.
           
                The perception that the EPA policy guide on workplace smoking 
crosses the line from information into advocacy is not mine alone.  ICF 
Incorporated, which functioned as the nominal prime contractor for 
preparation of the policy guide, recently provided me with a marked-up copy 
of the guide purporting to reflect ICF's own handwritten editorial comments.  
I discovered that my concerns about the tone and emphasis of the legal 
discussion in the policy guide were shared by ICF's own internal reviewers.  
Marginal comments on this section included such observations as "it seems 
really weird to have a much lengthier discussion on litigation than on the 
effectiveness of various mitigation alternatives" and "this discussion is too 
rah-rah -- this chapter should be more objective in tone."  For reasons that 
have never been explained fully, however, ICF apparently was not asked to 
comment on the draft prior to its public release in June 1990, even though 
ICF supposedly supervised the preparation of this document by its 
subcontractor, the Smoking Policy Institute.  As will be discussed later, 
many questions remain about the Smoking Policy Institute's role in preparing 
the policy guide.
           
                The SAB's eventual review of the scientific conclusions in 
the policy guide was incomplete at best.  Prior to the guide's release, EPA 
had decided to limit the SAB's review to those parts that referred to the 
risk assessment, to ensure that the latter was "properly characterized."  
Since the SAB had not yet seen a risk assessment draft it could approve, one 
must question how it could make sure that the policy guide properly 
characterized it.  Moreover, the policy guide covered a much broader range of 
issues than the risk assessment.  The policy guide had been drafted based on 
the technical compendium, which, as I have explained, EPA has never given to 
the SAB to review, and which makes many more health claims than does the ETS 
risk assessment.  These include unsupported assertions that ETS has been 
shown to cause cardiovascular disease and suggestions that ETS has been 
associated with brain cancer.
           
                Such extravagant claims are at odds with EPA's private 
admissions to other government officials that "[w]e know very little about 
ETS exposure in the workplace, and cannot estimate the relative significance 
of workplace vs. home vs. all other sources of exposure; nor can we clarify 
the significance/role/impact of exposure to other pollutants (e.g., radon and 
other air carcinogens) in addition/conjunction with ETS exposure."(18)  If 
EPA knows "very little" about ETS exposure in the workplace, it is difficult 
to understand why it would decide to issue a workplace policy guide.  EPA 
cannot assert, as it did repeatedly in the policy guide, that only smoking 
bans or separately ventilated smoking lounges are appropriate without 
occupational exposure data.  In the absence of such data, the policy guide's 
recommendations necessarily reflect only the personal preferences of the 
guide's authors.  I expressed these concerns many times in writing to EPA 
Administrator Reilly and received noncommittal replies.
      
        E.   Irregularities In Contract Award Procedures

                The selection of the policy guide's author, Robert Rosner of 
the Smoking Policy Institute ("SPI"), raises further questions about the 
document's objectivity and reliability.  SPI is in the business of 
counselling employers on the implementation of smoking policies and operating 
smoking cessation clinics.  This organization therefore had a vested 
financial interest in conveying the impression in the policy guide that 
employers without smoking policies or cessation programs were at risk of 
lawsuits or worse.
           
                In addition, Mr. Rosner had no technical background in any of 
the areas on which the policy guide purported to reach definitive 
conclusions.(19)  These include the possible health effects of exposure to 
ETS (and other indoor air components), the legal ramifications of workplace 
smoking policies, public attitudes toward smoking, and the claimed economic 
consequences of permitting smoking in the workplace.
           
                Apart from this obvious conflict of interest and lack of 
necessary qualifications, the award of the SPI subcontract appears to have 
violated federal procurement regulations, an impropriety EPA has recognized 
only grudgingly.  As ranking minority member of the Subcommittee on Oversight 
and Investigations of the House Committee on Energy & Commerce, I uncovered 
evidence that SPI was improperly sole sourced on the subcontract, and that 
the choice was made by Indoor Air Division officials at EPA rather than by 
the prime contractor, ICF Incorporated.  This abuse of the contracting 
process, as well as the conflict of interest noted above, has been brought to 
the attention of the EPA Inspector General.
           
                Under federal regulations, an agency may not specify the use 
of a certain subcontractor without competitive bidding.  In the case of the 
policy guide, EPA staff first solicited the Smoking Policy Institute for the 
job and then sought to funnel the work through the main contractor, ICF 
Incorporated.  In fact, Robert Axelrad telephoned SPI's Rosner in mid-1988, 
before getting ICF involved, and told Rosner that EPA had $30,000 to spend on 
the project for that fiscal year and also would provide funding the following 
year.  On July 23, 1988, Mr. Axelrad followed up with a bid solicitation 
letter to Mr. Rosner:
 
                The attached stack of material represents
                the current status of the technical manual
                on environmental tobacco smoke which we
                discussed in our telephone conversation on
                the 11th.

                As you will see from a review of this
                material, substantial portions of the
                manuscript are still to be written/
                assigned/edited.  What I am looking for is
                someone who can take the lead role at this
                stage in ensuring that the document is:
                a) conceptually sound; [and] b) a useful
                addition to the body of knowledge
                available on environmental tobacco smoke
                at a reasonable cost.  This would entail
                managing the entire process from this
                point to completion of a camera-ready
                manuscript.

                If you are interested in taking on the
                task, please send me a letter describing:

                1.   The conceptual changes you would
                     make, and a revised outline
                     reflecting your suggested changes;

                2.   A brief description of tasks which
                     you perceive to be necessary to get
                     from here to there; and

                3.   A reasonably detailed all-inclusiue
                     budget for accomplishing the above.

                As I mentioned to you on the phone, I have
                approximately $30K to begin the project
                this fiscal year and am prepared to put
                limited funds into the effort next year.

                An arrangement was made in August 1988 that SPI would be paid 
by making SPI a subcontractor to ICF.(20)  The "justification" memo that ICF 
wrote to support the sole-source subcontract stated that SPI was uniquely 
qualified.  There was no support for that claim, however, nor any indication 
that ICF had made any evaluation of SPI.  The drafts of the policy guide 
written by SPI were not even copied to ICF but went straight to Mr. Axelrad 
at EPA.
           
                The only copy of the policy guide commented upon by ICF was 
the draft released publicly in June 1990.  This raises questions about Mr. 
Reilly's statement to me in March 1992 that "ICF's role was, and is, more 
than simply a conduit for payments to the Smoking Policy Institute.  In 
addition to providing comments on the various drafts prepared, ICF managed
much of the external review process * * *."  The documents from ICF's files 
recently turned over to me suggest that, far from commenting on "various 
drafts," ICF's first opportunity to comment on the policy guide occurred when 
the document was released for public comment.  In sum, ICF file documents 
confirm that its involvement began only after the policy guide was released 
publicly -- and after I had begun to raise questions about the propriety of 
the SPI contract.
           
                The situation with SPI further underscores the fact that a 
risk assessment was crafted to justify a policy that had been adopted long 
before.  The record clearly shows, first, that EPA staff hand-picked SPI to 
prepare documents that would advocate workplace smoking restrictions long 
before any assessment of the science had been completed; second, that EPA 
arranged for SPI to be signed up as a subcontractor to ICF to circumvent 
applicable federal procurement requirements; and finally that, in this way, 
taxpayer funds helped produce what is essentially a marketing and promotion 
aid for SPI's business.
           
                Unfortunately, the SPI contract appears to be but one example 
of a more general pattern of contractual problems at EPA.  In light of 
widespread revelations about EPA's contracting practices, on July 8, 1992, 
Chairman Dingell convened the House Commerce Committee's Subcommittee on 
Oversight and Investigations to conduct hearings on "The Collapse of Contract 
Management at the U.S. Environmental Protection Agency."  The majority of the 
hearing was devoted to a number of instances of contractual abuse and 
mismanagement at EPA that had been identified by the GAO and the EPA 
Inspector General.
 
                Whether the problems with the SPI subcontract would have come 
to light absent a congressional investigation is an open question.  The 
replies that I received to my inquiries to Mr. Reilly as late as March 1992 
were less than forthcoming.  In a letter to me dated March 24, 1992, for 
example, Mr. Reilly unequivocally stated that --
 
                [w]e do not agree that the subcontract
                issued to the Smoking Policy Institute
                (SPI) was issued in violation of Federal
                procurement law.  * * *  These contracts
                were competitively awarded in full
                compliance with all Federal contract laws.
                The smoking policy guide was well within
                the scope of the [ongoing EPA/ICF]
                contracts and ICF's selection of the
                Smoking Policy Institute was proper based
                on their determination that the SPI had
                unique or specialized experience in this
                area.
          
Mr. Reilly also stated without qualification that "[t]he Smoking Policy 
Institute was not selected by EPA staff but by ICF," even though Mr. Axelrad 
had told my staff six months earlier that EPA staff had selected SPI.
          
                Even more curiously, at the Oversight hearing on July 8, 
1992, Mr. Reilly repeatedly claimed that he lacked knowledge about how SPI 
was selected, the nature of SPI's supposed "specialized experience," the fact 
that SPI was in the business of promoting workplace smoking restrictions, or
any other information pertinent to the unqualified statements he had made in 
his March 24, 1992, letter to me.  It is impossible to square these oral 
statements with the prior and quite detailed assurances Mr. Reilly had 
provided to me in writing.
 
                Since then, EPA has reversed its earlier public position that 
the SPI contract was awarded properly.  At the July 8 hearing, the Agency's 
own Chief Financial Officer acknowledged that "this might very well be an 
improper contracting practice.  It may be a pass-through and the designating 
of the $30,000 may also be improper."  Mr. Reilly's most recent letter to me 
dated July 31, 1992, attaches a memorandum from Mr. Axelrad to his supervisor 
at EPA, Eileen Claussen.  Mr. Axelrad's memorandum acknowledges that his 
decision to contact SPI outside normal procurement procedures was 
inappropriate and that his recommendation "probably" caused ICF to select SPI 
as the subcontractor.  Mr. Reilly indicated at the July 8 hearing that he had 
requested an investigation by EPA's Inspector General of the apparent 
conflict of interest and other improprieties in the award of the SPI 
contract.  Congressmen Dingell and I made a similar request and asked that 
the Inspector General report his findings to the House Subcommittee on 
Oversight and Investigations.
 
                In March 1993, the Inspector General sent me a letter setting 
forth his findings.  In that letter, the Inspector General states as follows:
 
                We believe the award [of the contracts to SPI]
                was tainted in how it was processed.  First,
                there was no attempt by ICF to seek competi-
                tion.  Second, the actions by an EPA program
                official gave the appearance that he, rather
                than ICF, selected the subcontractor.
                       
The Inspector General also found that "the EPA believed that "it may have 
been 'unauthorized action' under the EPAAR [EPA Acquisition Regulations]."  
The Inspector General also indicated that "the procurement should not have 
proceeded on a non-competitive basis."
                      
                EPA's contracting improprieties in connection with the 
preparation of the four ETS documents are not confined to the policy guide.  
In June 1993, the Inspector General reported to me that similar abuses had 
occurred in connection with several of the ETS risk assessment subcontracts.  
The most egregious of these appears to be the subcontract between ICF, once 
again the prime contractor, and Kenneth G. Brown, Inc., which drafted most of 
the critical sections on lung cancer.  The Inspector General states that in 
the case of the Brown subcontract, "EPA program personnel and ICF simply 
circumvented the contracting officers" altogether, clearly a violation of 
proper procedures.  Like the SPI subcontract, the Brown subcontract also was 
awarded on a non-competitive basis, and the only justification for that 
decision that could be found was an undated and unsigned "sole source 
justification" file memorandum.

        F.   The Science Advisory Board's Review Of
             The Risk Assessment
                       
                The first drafts of the ETS risk assessment and the workplace 
policy guide were released for public comment in June 1990.  At the same 
time, EPA transmitted the drafts to the SAB, requesting formal review.  A 
hearing before a subpanel of the SAB was held in December 1990.  The subpanel 
reported the results of its review to the SAB Executive Committee in April 
1991.  The risk assessment was sent back to EPA with directions that it be 
revised extensively.  After major rewriting, a second draft was released in 
June 1992 and a second SAB hearing was held before essentially the same 
subpanel in July of that year.  Following the SAB's report to the SAB 
Executive Committee in October 1992, the final risk assessment was released 
on January 7, 1993.
           
                At both the public hearings and in written comments, the 
validity of most of the risk assessment's assertions was criticized by a 
number of scientists with expertise in the relevant disciplines.  
Unfortunately, most of these criticisms were ignored for reasons having 
nothing to do with science and everything to do with politics.  Although the 
SAB is supposed to function as an independent and unbiased review body, in 
the case of the ETS risk assessment it became apparent early on that the SAB 
review process itself had become as intensely politicized as the rest of EPA.
           
                1.  How The Panel Was Selected
           
                The EPA Science Advisory Board is intended to serve as an 
independent review body composed of impartial experts from outside the 
Agency.  Its function is to ensure Agency accountability and integrity in the 
use of science.(21)  In addition to the seven standing members of the SAB's 
Indoor Air Quality and Total Human Exposure Committee, the decision was made 
at EPA to select nine scientists to serve in an ad hoc capacity on the panel 
that was to review the draft ETS risk assessment and policy guide.  Because 
they were to review work that had been developed and put forward by Agency 
staff and others with vocal antismoking records, their ability to conduct a 
fully objective critique was essential.  Therefore, at the outset I expressed 
concern to EPA that the selection process be above reproach.  I also urged 
EPA to apply certain -- I thought self-evident -- criteria to ensure 
objectivity.
            
                My suggestions included that (1) the SAB panel be limited to 
recognized authorities with relevant specialties; (2) the members should not 
have participated in the development of the technical compendium, the policy 
guide, or the risk assessment, or have already provided comments on them, 
including serving as EPA contractors or grantees; and (3) they should not 
have become enmeshed in the political controversy surrounding ETS by having 
testified for or against smoking restrictions, or by having been active 
members of groups that had taken a position on the broader issues concerning 
smoking.
 
                EPA squarely rejected the second and third criteria.  In his 
reply to me, Mr. Reilly stated it was EPA's belief that there was merit in 
having individuals who were previously involved, promising that "the extent 
of any prior involvement will be publicly disclosed at the meeting."  In 
fact, that was not fully done.  Regarding activists' filling SAB positions, 
Mr. Reilly also promised that "should technical conditions require the 
presence of such an individual on the panel, he or she would be balanced by 
the presence of an individual who could represent the opposing point of 
view."
           
                Unfortunately, the panel ultimately was not balanced in the 
way Mr. Reilly had suggested.  Not one of the candidates suggested by the 
tobacco industry was even contacted for inclusion on the panel.  In contrast, 
three of six persons suggested by antismoking organizations were chosen, 
including Dr. David Burns.
           
                The selection of Dr. Burns was especially puzzling, given 
that Mr. Reilly had assured me shortly before Dr. Burns' selection that 
"experience has shown that the deliberative process is generally not aided if 
extreme views are represented on the panel itself."  Long before EPA 
appointed him to evaluate the scientific data on ETS, David Burns was 
spending by his own reckoning half of his time in the antismoking movement.  
He had claimed in 1988, for example, that ETS caused 3,000 deaths per year 
(Nonsmoking Ordinance, So Far, Proves To Be No Hazard To Economic Health, Los 
Angeles Times, January 8, 1989, sec. 2, p. 1).  He also had testified in 
several cases in favor of local antismoking measures -- including a 1987 
initiative in Del Mar, California that would have banned smoking outdoors, on 
city sidewalks and in beach areas (UCSD Expert is Smoking's Archenemy, Los 
Angeles Times, August 21, 1989, sec. 2, p. 1).   In addition, Dr. Burns had 
testified in favor of a tobacco advertising ban that a Canadian trial court 
subsequently held to be a violation of the free speech guarantee of the 
Canadian Constitution (RJR-MacDonald  Inc. v. Le Procureur General du Canada, 
No. 500-05009755-883 (Superior Court of Quebec, July 26, 1991)).(22)  In that 
testimony, Dr. Burns stated that --
 
        -    in the two years he worked for the National
             Clearinghouse on Smoking and Health, he had
             helped devise programs to discourage smoking;

        -    he had served on the American Cancer Society
             committee responsible for setting policy on
             tobacco issues;

        -    he had served as senior scientific advisor for
             the 1986 Surgeon General's report on ETS and
             regarded that work as part of his antismoking
             efforts;

        -    he is a consultant to plaintiffs' counsel in
             tobacco product liability cases.
          
                In his Canadian testimony, Dr. Burns acknowledged that his 
activities are part of an effort to "see smoking behavior disappear from 
society" (transcript at p. 10470).  He acknowledged that "much of the work 
that [he did] within the university is to teach on * * * the means by which 
tobacco can be controlled within society" (id. at 4964).  Dr. Burns 
demonstrated his dogmatism when he said that there "is no credible scientist" 
who would disagree with his views.  Finally, Dr. Burns made clear that his 
single-minded focus is on promoting and supporting restrictions on the use of 
tobacco in any public place in order to penalize smokers for their decision 
to smoke.
 
        -    [I]n order to modify smoking behavior, one
             needs to look at * * * changing the public
             image of tobacco, changing the locations in
             which tobacco can be used, to create an
             environment in the larger society that actually
             discourages rather than encourages the use of
             this product (id. at 10462).

        -    [T]he key * * * is not simply providing
             the information * * * it's also to change
             the larger environment in which that
             individual functions to make it less
             conducive to using cigarettes and more
             rewarding to not use cigarettes (id. at
             10462-463).

        -    I'm also not particularly inclined to testify
             to issues relating to the benefits, if you
             will, of tobacco or to any of the open
             scientific questions * * * (id. at 4999).

        -    And to the extent that [the Del Mar smoking
             ordinance] changes the image of the cigarette
             smoker and changes the psychological and
             sociologic rewards of cigarette smoking, then
             one -- then it contributes to changing the
             environment in which smoking occurs (id. at
             10514-515).
          
                By his own testimony, therefore, Dr. Burns is incapable of 
even discussing the "open scientific questions" concerning tobacco use, let 
alone evaluating scientific data relevant to those questions in an objective 
manner.  I would add, by the way, that Dr. Burns himself has not conducted or
published any original scientific research on ETS.
                       
                Some at EPA recognized, if belatedly, that Dr. Burns' 
inclusion on the SAB panel would not be appropriate.  In addition to the 
problems previously mentioned, Burns had been involved in reviewing and 
commenting on earlier versions of the risk assessment and could hardly be 
expected to be objective in evaluating a report reflecting his own 
substantial input.  On October 22, 1990, the New York Times reported that SAB 
Staff Director Dr. Donald Barnes had acknowledged that Dr. Burns was not 
suitable for membership because of his demonstrated bias against smoking.  
Imagine my surprise when, only two days after the New York Times story 
appeared, Mr. Reilly informed me that Dr. Burns would be included on the 
panel after all!
                    
                The decision not to include Dr. Burns had been followed 
immediately by claims in the press by antismoking activists that Dr. Burns 
had been dropped because of political pressure from the tobacco industry.  At 
the same time, the press also was reporting that some committee members had 
acted as advisors or peer reviewers for the Council on Indoor Air Research 
("CIAR"), a research organization that receives funding from the tobacco 
industry.  Allegations were made that these committee members were biased as 
a result of their association with CIAR.  In fact, the allegations were 
baseless.  Four of the six people with CIAR associations already were 
standing SAB committee members, and not one had been suggested by the tobacco 
industry.  Regardless of the falseness of the charges, public reporting of 
them placed pressure on the members not to criticize the Agency's drafts lest 
they be seen as "biased" in favor of the tobacco industry.  As one of these 
individuals, SAB panel chairman Dr. Lippmann, candidly admitted to the press, 
"[i]t's not that I'm a tool of industry. I'm a bigger tool of government.  
I've been working for the EPA longer.  I have more to lose by offending the 
EPA than industry."(23)  Another panelist, James Woods, promised the 
Associated Press on November 20, 1990 -- well before the SAB hearing -- that 
"the comments he intends to make on the EPA report will demonstrate that he 
is not biased toward tobacco companies.  'Wait and see what I say at the 
hearing.'"
           
                At this point the process had become so deeply enmeshed in 
controversy that an objective review by the panel was no longer possible.  As 
a consequence, the only responsible course of action would have been to 
reconstitute the panel.  Even the New York Times called for such a move, in
an editorial entitled "Objectivity Up in Smoke."  In response, the EPA simply 
proceeded as if no problem existed.
 
                During my investigation, we learned from both Donald Barnes, 
the SAB staff director, and Robert Flaak, his assistant, that Mr. Flaak 
deliberately went around his boss, Dr. Barnes, to Dr. Lippmann and enlisted 
his support in overruling Dr. Barnes' decision not to invite Dr. Burns to 
join the panel.  It would not be unreasonable in these circumstances for a 
scientist in Dr. Lippmann's position to fear the public consequences of a 
refusal to give in to the demand of the antismoking lobby on this issue.  
There also were suggestions that Dr. Lippmann and Mr. Flaak may have met with 
at least one reporter who had written a series of articles on ETS prior to 
the December 1990 SAB meeting to discuss the press coverage the meeting might 
generate based upon the panel's conclusion.  Many unanswered questions remain 
about Mr. Flaak's behind-the-scenes role in conducting off the-record 
meetings with antismokers and other activities in connection with the panel's 
composition.
           
                There are questions about the objectivity of other SAB panel 
members.  As mentioned earlier, Jonathan Samet of the University of New 
Mexico had stated that uncertainties regarding ETS scientific data should not 
interfere with tobacco control efforts.  Like Burns, Samet also had been 
involved in reviewing earlier drafts of the risk assessment.  Before that, he 
had played a major role in drafting or reviewing portions of the technical 
compendium and policy guide.  In addition, eight of the fifteen panel members 
were themselves responsible for scientific studies relied upon in the first 
or second drafts of the risk assessment -- hardly the type of circumstances 
that ensure independent evaluation.(24)
           
                In response to my written and oral communications of concern 
about these developments, Mr. Reilly blithely assured me that "the panelists 
are well qualified to deal with the technical issues that are being directed 
to them.  To the degree that there are differing scientific views on the
information under review, the SAB process * * * allow[s] for and mandate[s] a 
balanced, open discussion of the issues, with ample opportunity for input 
from and observation by the public."  Of course, all the discussion and 
"input" in the world will not sway a mind already closed on the issue in
question.  Ultimately, moreover, no such discussion was permitted and input 
from the public was sharply limited.
           
                When I pressed Mr. Reilly on these points, he replied with a 
series of non sequiturs.  Stating that "it is not easy to select a panel of 
experts on any 'highly charged emotional and political issue' such as ETS," 
he then asserted without further explanation that the SAB panel would be
capable of providing objective advice and that to delay the process to 
reconstitute the panel would "not serve the public interest."  How the public 
interest was served by EPA's pressing ahead despite the problems that had 
arisen has never been explained.  Interestingly, Mr. Reilly made no attempt 
to deny or refute the specific allegations made against Dr. Burns and other 
panel members.
           
                Equally disturbing, I have learned recently that, as the SAB 
considered the first draft of the risk assessment, Dr. Steven Bayard, the EPA 
staff member with principal responsibility for the document, was providing 
"enthusiastic" support to a grant proposal by Dr. Stanton Glantz and his 
associates in California for a project designed explicitly to discredit any 
scientist who has consulted on the ETS issue for the tobacco industry and 
expressed critical views with regard to the risk assessment.  As discussed 
earlier, Dr. Glantz prepared a chapter of the ETS technical compendium and is 
a well-known and vocal antitobacco activist.  The grant proposal seeks to 
study "[t]he tobacco industry and scientific research."  The purpose of the 
study is to arrive at "[a]n understanding of tobacco industry tactics for 
influencing research on ETS" by identifying whether particular scientists are 
"funded by the tobacco industry."  That Dr. Bayard's January 10, 1991, letter 
in support of that application offered to continue to cooperate actively with 
Glantz and his associates at a time when the risk assessment was still under
SAB review raises questions about the EPA staff's approach to resolving 
legitimate scientific criticisms of their work.  Rather than addressing those 
criticisms on the merits, Dr. Bayard's endorsement of the Glantz proposal 
creates the impression that he is more interested in silencing his critics.
           
                Dr. Bayard's participation in this effort is even more 
alarming given his role in the selection of SAB panelists.  Mr. Reilly 
repeatedly shunted aside bias concerns on the ground that the procedures for 
selecting SAB members are intended to ensure that members "are free from 
legal and perceived conflict-of-interest."  Later on, however, I wrote to EPA 
asking for an explanation of how the ETS panel was being selected.  In 
response, EPA informed me that the candidates were being selected by Dr. 
Bayard, with assistance from Robert Axelrad and James Repace.
           
                2.   The Initial SAB Hearing
           
                Despite Mr. Reilly's promises, the SAB panel meeting on 
December 4-5, 1990, was conducted in a manner that effectively prevented 
scientific viewpoints critical of the two draft ETS documents from being 
given anything resembling a full and fair hearing.  Less than two hours were 
allowed for presentations by scientists critical of the report.  Certain 
attendees who had personally requested time from the Chairman were foreclosed 
from speaking under the agenda that had been formulated.  The input of 
several critical points of view was lost, as well as the opportunity for the 
panel to ask questions and to conduct a dialogue with other scientists.  In 
contrast, twice as much time was given to antismoking organizations.  
Although there certainly was enough time to accommodate all who had asked to 
speak, several scientists who had expressed doubts about the risk assessment 
and policy guide were denied the chance.  No explanation was given for the 
failure to accommodate these speakers or why the SAB hearing was conducted 
with such rigidity.  Most SAB review panels are conducted in an open and 
collegial manner that encourages vigorous discussion of all competing 
scientific viewpoints.
           
                Two of the ETS panel members who agreed to review the report 
did not even attend the first day of the meeting, which was the only time 
reserved for public comment.  Other panel members openly admitted that they 
had not read any of the written submissions.  The panel members did not 
address or acknowledge the many public comments in their written reviews.
           
                No presentations were permitted on the risk assessment 
chapter dealing with the respiratory health of children.  Without providing 
any opportunity for public comment, EPA had transmitted to the SAB a new 
"draft report with a detailed description and analysis of 26 studies" on
childhood exposure to ETS.  Not surprisingly, the document failed to discuss 
any studies that did not support EPA's preferred conclusions.  By inserting 
it at the last moment and preventing public discussion of the topic at the 
hearing, meaningful public scrutiny of the Agency's conclusion was excluded.
           
                The negative perception created by the SAB was heightened by 
the Chairman's summary remarks and statements by him and others to the press 
after the panel adjourned, misleadingly suggesting that the panel had reached 
a "consensus" on the classification of ETS as a human carcinogen.  As the 
transcript of the meeting shows, there was no such "consensus."  Several 
panel members criticized the draft in key respects.  Dr. Jeffrey Kabat, for 
example, repeatedly questioned important aspects of the methodology used in 
the draft as well as its treatment of specific studies before concluding that 
classifying ETS as a Group A carcinogen could be "rash" (II, p. 15).  Dr. 
Kabat stated that "the observations on nonsmokers that have been made so far 
are compatible with either an increased risk from passive smoking or an 
absence of risk or I would say that with a risk that's so small that maybe 
it's not -- you can't measure it with certainty" (ibid).  Others on the panel 
expressed similar reservations about the draft's conclusions.(25)
 
                The advisory panel also did not consider a number of
pertinent studies, including a study by one of its own members, Dr. William 
Blot of the National Cancer Institute.  Dr. Blot had served, along with Dr. 
Wu-Williams, as one of the principal investigators on one of the largest 
studies ever conducted on ETS and lung cancer among nonsmokers.  However, the 
new study was not discussed by the panel, even though the study had been 
accepted for publication in the British Journal of Cancer before the panel 
met.  Amazingly, Dr. Blot himself did not mention the study, which reported 
no health risks from ETS.

                After the panel meeting, Dr. Lippmann held a press conference 
to announce the conclusion that ETS "should be classified as a Class A 
carcinogen."  The impropriety of a supposedly impartial scientific expert 
attempting to frighten the public on the basis of an incomplete and 
unsupported document speaks for itself.  But Dr. Lippmann compounded this
breach by misrepresenting the panel's conclusions concerning the strength of 
the evidence.  Among other remarks, Lippmann stated that "if anything, [the 
evidence] suggests that it is more potent than we had thought" (Evidence 
Shows That Tobacco Smoke Causes Cancer, Head of EPA Panel Says, Bureau of 
National Affairs, Daily Report for Executives, December 7, 1990, p. A8).  
Perhaps realizing that he had gone too far, Lippmann subsequently tried to 
qualify his remarks but succeeded only in being inconsistent.  "[T]his is a 
classic case where the evidence is not all that strong."  Nonetheless, 
Lippmann asserted, the "weight of the evidence" supports the risk 
assessment's conclusions (Passive Smoke A Cause of Cancer, Panel Concludes, 
The Washington Post, December 6, 1990, p. A9).
           
                3.   SAB Executive Committee Meeting, April 1991
           
                Dr. Lippmann presented the SAB panel's report to the SAB's 
Executive Committee meeting in April 1991.  This report was curious for 
several reasons.  First, the SAB concluded that the worldwide epidemiologic 
data on ETS were too weak and inconclusive to support the draft risk 
assessment's conclusion that ETS is a cause of lung cancer in nonsmokers.  In 
addition, the panel did not endorse the Agency's quantitative lung cancer 
analysis, noting that the "real" number "may be greater or less than the 
number EPA cites."
 
                After concluding that the rationale underlying the EPA 
staff's conclusions about lung cancer could not be sustained, however, the 
SAB could not bring itself to take the logical, if politically unpalatable, 
next step and reject EPA's conclusions regarding ETS and lung cancer among 
nonsmokers.  Instead, the SAB endorsed the conclusion that ETS is a "Group A" 
carcinogen while taking the extraordinary step of urging the EPA staff to 
attempt to "make the case" against ETS based on extrapolation from data 
concerning active smoking.  In essence, the Agency was being encouraged to do 
the science backwards -- to maintain its conclusion while going about the 
task of finding support for it.
           
                Not surprisingly, the SAB report did not acknowledge that EPA 
had largely ignored its own "Guidelines for Carcinogen Risk Assessment," 
51 Fed. Reg. 3394 (September 24, 1986), in order to reach its apparently 
predetermined position.  Among many violations of the guidelines, EPA had 
failed to rule out the possibility of bias and other flaws in the ETS studies 
and also had failed to consider animal studies and other non-epidemiologic 
data.
           
                The SAB's report feebly suggested that the panel "had some 
difficulty in applying the 'Guidelines for Carcinogen Risk Assessment', as 
they are currently formulated," to the ETS data.  Particular attention was 
given to the report's statement that "[i]f the guidelines for Carcinogen Risk 
Assessment can be used to cast doubt on a finding that inhalation of tobacco 
smoke by humans causes an increased risk of lung cancer, the situation 
suggests a need to revise the guidelines" (SAB Rep. 28).  This prompted one 
member of the SAB Executive Committee to note that it sounded a little like 
saying "if the data doesn't fit the guidelines, the guidelines should be 
changed."  Nevertheless, the Committee accepted the panel's Group A 
designation despite the clear failure of the data to satisfy the Agency's own 
guidelines.
           
                Following the Executive Committee meeting, Dr. Lippmann once 
again spoke to the press about the SAB's conclusions.  This time Dr. 
Lippmann's statements were considerably more restrained than his remarks at 
the December 1990 press conference.  This time he stated that "occasional,
light exposure [to ETS] is not likely to cause any harm" (United Press 
International, April 19, 1991).  Dr. Lippmann also observed that in his view 
the risk due to ETS exposure is "probably much less than you took to get here 
through Washington traffic" (Washington Times, April 19, 1991, p. A-3).  On 
three separate occasions my staff asked Dr. Lippmann, "if one were to apply 
the guidelines as written could you classify ETS as a Class A known human 
carcinogen?" On all three occasions, Dr. Lippmann failed to respond to the 
question.  The next day, however, Dr. Lippmann stated at a meeting outside 
the glare of media attention that if the guidelines were applied strictly 
there was no clear mechanistic basis for calling ETS carcinogenic.
 
                4.   The Second Draft Risk Assessment
           
                EPA staff spent the next year and a half attempting to "make 
a case" against ETS.  The revised risk assessment draft was over 600 pages 
long, finally being issued on the afternoon of June 18, 1992.(26)  
Incredibly, however, EPA gave the public just nine working days to comment on 
it even though the report had doubled in length and a whole new set of flaws 
had been introduced.  Even the Science Advisory Board panel had only until 
July 20 to review the revised draft and consider outside comments before the 
public review meeting.
           
                The second draft risk assessment was even more curious than 
the first.  As an EPA health scientist who contributed to the draft admitted, 
the Agency staff had engaged in some "fancy statistical footwork" in the 
revised risk assessment in order to "fashion [an] indictment" of ETS 
(Science, vol. 257,  p. 607 (July 31, 1992)).  In the prior draft, EPA's 
calculations had showed that the epidemiologic studies based on U.S. 
populations showed no statistically significant association between ETS and 
lung cancer among nonsmokers.  In order to reach a statistically significant
result in the first draft, EPA therefore had included in its calculations all 
of the studies of ETS conducted worldwide to tilt the balance in the favored 
direction.  Both EPA and the SAB rejected out of hand arguments by critics 
that the risk assessment should have considered only the U.S. studies.
           
                When EPA staff was revising the risk assessment, however, it 
was confronted by the Wu-Williams/Blot study, which had been conducted in 
China and reported a statistically significant negative association between 
marriage to a smoker and lung cancer among nonsmokers -- the exposure 
scenario relied upon in the initial risk assessment draft.  Inclusion of the 
Wu-Williams/Blot study in EPA's analysis would have forced EPA to reverse its 
conclusions about ETS and lung cancer.  At the same time, however, EPA had 
obtained preliminary data from a large U.S. study that, with some massaging, 
could be used to support its calculations of risk based exclusively on the 
U.S. studies.
           
                Accordingly, EPA entirely reversed course and decided in the 
second draft to disregard the non-U.S. studies.  Instead, EPA used the U.S. 
studies only.  The Agency also adopted an entirely new standard of 
statistical significance, presumably because the one used in the prior draft 
would not have yielded the desired results, even with the inclusion of the 
new, if incomplete, U.S. study.(27)  Only by manipulating the numbers in a 
manner that violated well-accepted statistical methods was EPA able to claim 
in the second draft a barely significant association in the U.S. studies.
           
                The new draft also relied on the argument suggested by the 
SAB that because active smoking had been associated with increases in risk, 
ETS exposure also must be a risk factor.  The problem with this argument -- 
that ETS is in many respects a very different substance and is encountered at 
far lower levels -- was acknowledged in the revised report.(28)  At the same 
time, however, its significance seemed to escape those responsible for the 
report's conclusions.
 
                Similarly, the second draft risk assessment announced that 
ETS exposure had been established as a cause of respiratory disease in 
children.  The first draft risk assessment had stated that the data were too 
inconclusive to draw an inference of causation.  No new information became
available between the release of the first and second draft risk assessment 
to support this shift in the Agency's position.  Apparently, EPA staff took 
the SAB's earlier suggestion that it consider "strengthening" the report's 
conclusions concerning children as a license to sensationalize further the 
Agency's claims about ETS.
           
                The SAB held public hearings on the revised risk assessment 
on July 21 and 22, 1992, after having denied requests for more time to submit 
public comments on these and other problems.  The panel submitted its report 
approving the second risk assessment in October.  The panel's conclusions
make absolutely clear that it was unconcerned with the scientific soundness 
of the report's underlying rationale.  A brief comparison of the SAB's 
actions following its first and second review of the risk assessment confirms 
that the SAB actually disregarded its earlier findings in order to embrace
the desired conclusion.
 
        -    The SAB concluded in its second review that
             extrapolation from active smoking data could
             not, after all, serve as the sole or predomi-
             nant basis for the conclusion that ETS is a
             Group A carcinogen.

        -    The SAB had concluded in its first review that
             the epidemiologic data were too weak to support
             the inference that exposure to ETS causes lung
             cancer in nonsmokers.  The SAB reversed its
             position in its review of the second draft risk
             assessment once it became clear that active
             smoking data could not provide an alternative
             basis for that conclusion.

        -    The SAB concluded in its review of the first risk
             assessment that all studies of ETS and lung cancer
             conducted worldwide should be included.  In the
             second review, the SAB decided that EPA need only
             include the U.S. studies.  Had the Agency and the
             SAB adhered to their original decision to use all
             ETS studies, the meta-analysis would not have shown
             a statistically significant risk.

        -    The SAB nonetheless concluded that the Agency
             had established that ETS is a Group A carcino-
             gen responsible for approximately 3000 lung
             cancer cases every year in the United States.
             In the first review, the SAB had concluded that
             the data were too uncertain for EPA to attach a
             specific number to the deaths supposedly
             attributable to exposure to ETS.
          
                Put simply, the SAB concluded that ETS is a Group A
carcinogen even though neither of the two rationales advanced by EPA staff to 
justify such classification is scientifically defensible.  The first review 
determined that the spousal smoking studies were too weak to support an 
inference of causation.  The second review concluded that the active smoking 
data could not be used as an alternative ground.  Nonetheless, the SAB 
decided that the total "weight of evidence" supported a Group A 
classification.
          
                Following the SAB's October report, EPA staff rushed to 
revise and release the final risk assessment.  The Agency's haste apparently 
was motivated in part by the impending change in the Administration.  Perhaps 
of even greater concern to EPA, however, was the release of the Brownson 
study discussed above.  The fact that the largest U.S. case-control study 
ever conducted reported no statistically significant association between ETS 
exposure and lung cancer incidence casts further doubt on EPA's claims.  Had 
the Brownson study been included in EPA's analysis, the Agency's calculations 
would not have shown a significant risk from ETS even using the Agency's 
highly suspect statistical methodology.  Rather than face this embarrassment, 
EPA rushed to release the report without considering the Brownson study on 
the pretext that "it had to stop somewhere."(29)
           
                Together, EPA and the SAB have undermined the process by 
which risk assessments ought to be conducted:  first, by ignoring the 
substantial scientific controversy about what the ETS studies actually show; 
and, second, by conducting the forum where that controversy should have been 
thoroughly aired as a mere rubber stamp proceeding.  As a result, EPA's 
preparation and review of the risk assessment have given the appearance of a 
scientific show trial to legitimize a predetermined policy.
 

III. CONCLUSIONS
 
                EPA's handling of ETS is a symptom, albeit a very severe one, 
of larger agency problems.  These problems encompass not only widespread 
abuses in the award and oversight of government contracts but also the 
Agency's general approach to the use of science in policy making.  

                In fact, EPA's risk assessment process as a whole has come 
under fire.  In response, top EPA management moved to revamp internal 
guidelines governing EPA's use of science in risk assessments.  In February 
1992, Deputy Administrator Henry Habicht issued a document providing 
agency-wide guidance on science policy in risk assessment and risk 
characterization.  Mr. Habicht noted that significant information often was 
omitted as assessment documents were passed along in the decision-making 
process, and that "EPA risk assessors and managers need to be completely 
candid about confidence and uncertainties in describing risks and in 
explaining regulatory decisions."
 
                The guidance also drew from principles articulated earlier by 
the Risk Assessment Council in November 1991, such as the following.
 
                For users of the assessment and for
                decision-makers who integrate these
                assessments into regulatory decisions, the
                distinction between risk assessment and
                risk management means refraining from
                influencing the risk description through
                consideration of non-scientific factors --
                e.g., the regulatory outcome -- and from
                attempting to shape the risk assessment to
                avoid statutory constraints, meet
                regulatory objectives, or serve political
                purposes.  Such management considerations
                are often legitimate considerations for
                the overall regulatory decision * * * but
                they have no role in estimating or
                describing risk.(30)
          
In other words, science should drive policy, not the other way around.
          
                In addition to the new risk assessment guidance, as I 
mentioned at the outset, the EPA Administrator also had convened an expert 
panel to assess EPA's use of science, which issued an important report in 
March 1992 entitled "Safeguarding the Future:  Credible Science, Credible 
Decisions."  The report confirmed that "[c]urrently, EPA science is of uneven 
quality, and the Agency's policies and regulations are frequently perceived 
as lacking a strong scientific foundation" (p. 4).
          
                The expert panel also cautioned EPA, in terms that are 
directly relevant to the Agency's work on ETS, that "science should never be 
adjusted to fit policy, either consciously or unconsciously" (p. 38).  
Unfortunately, in the case of ETS there appears to have been a conscious use 
of science and the scientific process to achieve a political agenda that 
could not otherwise be justified.  

                While we should applaud the promised willingness of EPA to 
clean house and revise its methods, we also must question why that was not 
done in the case of the ETS risk assessment.  In his February 1992 policy 
memorandum, the Deputy Administrator wrote, "we do not expect risk assessment 
documents that are close to completion to be rewritten" (p. 5).  It is 
difficult to understand why, after acknowledging serious deficiencies in 
EPA's use of science, the Agency would refuse to correct the flaws in risk 
assessment projects then under way.  Similarly, EPA repeatedly has refused to 
respond to requests that it reevaluate its handling of the ETS controversy in 
general and the risk assessment in particular in light of the recommendations 
contained in "Credible Science."  This refusal raises questions about EPA's 
ability and desire to implement fully the reforms urged by "Credible 
Science."
           
                It also is deeply disturbing that Administrator Reilly, who 
professed to be "proud" of "Credible Science," did not choose to abide by its 
recommendations in his own statements about the ETS risk assessment.  As 
noted, continuing the pattern of media hype and sensationalism that has 
marked every aspect of EPA's consideration of ETS, Administrator Reilly and 
HHS Secretary Sullivan held a joint press conference on January 7, 1993, 
announcing the finalization of the risk assessment.  The press conference 
proceeded as though the "Credible Science" report and recommendations did not 
exist.
           
                One of the important conclusions of "Credible Science" is 
that EPA has done a poor job in communicating with the public about the 
uncertainties in its determinations.  In addition, the Agency's own guidance 
document emphasizes the importance of explaining fully scientific 
uncertainties in describing risks.  At the January 1993 ETS press conference,
however, the Administrator conveyed the clear impression that there is no 
uncertainty whatsoever so far as ETS is concerned --  that the risk 
assessment has shown "conclusively" that ETS exposure is responsible for 
approximately 3,000 cases of lung cancer among U.S. nonsmokers each year and 
specific numbers of respiratory problems among children.(31)  The 
Administrator also made the ridiculous statement that "the risks associated 
with environmental tobacco smoke are at least an order of magnitude greater 
than they are for virtually any chemical or risk that EPA regulates."(32)  
Among other things, that statement cannot possibly be reconciled with Dr. 
Lippmann's earlier statement that the risk supposedly associated with ETS is 
less than the risk of a single trip through Washington traffic.
           
                Finally, the Administrator disingenuously claimed that "[m]y 
philosophy is, first do the scientific analysis, and only then build the 
policy, determine the priority and devise the strategy based on a firm 
scientific foundation.  With this report we have laid the firm foundation 
upon which policy can now be built."(33)  The fact that EPA released, several 
years ago, a "Fact Sheet" and a draft policy guide recommending smoking bans 
and restrictions renders the Administrator's statement misleading at best.

                Some may argue that applying a double standard to ETS is 
justifiable, or at least understandable, on the ground that the target of 
EPA's action is tobacco smoking.  Regardless of one's personal beliefs about 
smoking, however, the spectacle of a huge, well-funded government bureaucracy 
with enormous power engaged in the deliberate manipulation of the public is 
profoundly disturbing.
 
                Further, if policy decisions are not based on sound science, 
the integrity of both the political and the scientific processes suffers.  As 
Dr. Feinstein has pointed out --
 
                [t]he "bad guys" * * * are not always
                right, but if they are denied a fair and
                proper scientific hearing, neither society
                nor science will benefit.  Society is
                entitled to make political decisions based
                on advocacy.  The scientific basis for
                those decisions however, should depend not
                on political advocacy, but on scholar-
                ship -- no matter how it is produced or by
                whom (p. 305).
          
                These concerns are not limited to ETS.  The suspicion that 
too many scientists and government officials are using "scare of the month" 
tactics to generate media attention and mobilize public opinion in support of 
personal political agendas has fueled widespread public cynicism.  At some 
point, people simply stop paying attention.  As the public television program 
"Technopolitics" noted in its June 11, 1991, program on the first draft of 
the ETS risk assessment --
 
                [t]he question remains whether the public
                health scare now being created through
                leaked draft documents and emotional
                public appeals is real, or is the anti-
                smoking movement merely using bad science
                to organize the nonsmoking majority
                against the smoking minority?

                The record of the EPA is not reassuring.
                On one environmental concern after
                another, from Alar apples to acid rain to
                dioxin, the EPA has first put out alarming
                information and then backed off.  Critics
                charge that the EPA is more interested in
                being politically correct than scientifi-
                cally accurate.
          
                In essence, EPA has declared war on smokers.  Because of 
EPA's pursuit of sensational headlines at the expense of objective scientific 
evaluation, some smokers have lost their jobs and many employers are 
practicing overt discrimination in hiring and promotion based solely on 
whether a person smokes.  People who think that such interference is unlikely 
to go beyond smoking should be warned:  a report last year on the television 
show "20/20" indicated that moderate social drinking off the job and 
participation in employer-defined "dangerous activities" also have become 
targets of workplace discrimination policies.  Can a government-sponsored 
"technical compendium" or "policy guide" on those subjects be far behind?

                EPA's mandate to clean up the nation's air, water, and waste 
enjoys public support.  But conduct by the Agency like its handling of ETS 
will continue to undermine that support unless the Agency decides to get 
serious about implementing the recommendations of "Credible Science."  If 
EPA's leaders will not step up to the task of reforming from within, it will 
become necessary for Congress to do the job for them.
 

July 1993


______________________________________________________________________________


                                  END NOTES

(1)     EPA Blowing Its Own Smoke?, Investor's Business Daily, January 28, 
        1993, p. A1.

(2)     Presentation by Richard Daynard, International Council for 
        Coordinating Cancer Research:  Conference on Cancer Prevention 
        (February 1991).

(3)     S. Glantz, Achieving a Smokefree Society, Circulation, vol. 76, 
        pp. 746-752, 747 (1987).

(4)     R.C. Brownson et al., Passive Smoking and Lung Cancer in Nonsmoking 
        Women, Am. J. Pub. Health, vol. 82, pp. 1525-1530 (1992).

(5)     Investor's Business Daily, supra note 1.

(6)     Ibid.  In addition to these deficiencies, classification of ETS as a 
        Group A carcinogen cannot be reconciled with EPA's own "Guidelines 
        for Carcinogen Risk Assessment."  The Scientific Advisory Board that 
        reviewed the risk assessment acknowledged that the document did not 
        adhere to the Agency's guidelines, but dismissed such concerns with 
        the suggestion that the guidelines simply be changed.  The report 
        also selectively uses data that support its conclusions while 
        omitting evidence that does not.  For example, the report completely 
        ignores workplace and male exposure data, which do not show any 
        association between exposure to ETS and lung cancer.

        Such treatment by both EPA and the SAB is unprecedented.  No other 
        substance has been classified as a Group A carcinogen in the face of 
        a clear majority of epidemiologic studies showing no statistically 
        significant association or on an assumed similarity with another 
        substance.  Other substances that have been considered for 
        classification as known or probable human carcinogens, including 
        electromagnetic fields and diesel exhaust, have been accompanied by 
        considerably stronger evidence of carcinogenicity in both human and 
        animal studies than ETS. Comparing those risk assessments to the ETS 
        report only reinforces the view that the report is intended to 
        support a policy decision to restrict ETS exposure and not to assess 
        risk objectively.

(7)     The risk assessment does not address the data concerning ETS exposure 
        and cardiovascular disease.  Two earlier documents prepared by EPA 
        staff, however, an ETS "technical compendium" and a related 
        "workplace policy guide," asserted that ETS exposure is a cause of 
        cardiovascular disease.  In fact, exposure to ETS has not been proven 
        to cause or exacerbate cardiovascular disease among nonsmokers.  In 
        1986, the U.S. Surgeon General and the National Academy of Sciences 
        reviewed the data and concluded that there was insufficient evidence 
        even of an association between ETS and cardiovascular disease.  U.S. 
        Surgeon General, "The Health Consequences of Involuntary Smoking," 
        U.S. Department of Health and Human Services (1986); National 
        Research Council, "Environmental Tobacco Smoke:  Measuring Exposures 
        and Assessing Health Effects" (1986).  No studies have been published 
        since 1986 that would alter their conclusions.

(8)     A. Feinstein, Critique of Review Article, Environmental Tobacco 
        Smoke:  Current Assessment and Future Directions, Toxicologic 
        Pathology, vol. 20(2), pp. 303-305, 304 (1992).

(9)     J.M. Samet and M.J. Utell, The Environment and the Lung: Changing 
        Perspectives, J. Am. Med. Ass'n., vol. 266, p. 673 (1991).

(10)    Risk Studies Differ on Passive Smoking, Washington Times, 
        November 20, 1992, p. A3.

(11)    A.H. Lowrey and J.L. Repace, Indoor Air Pollution, Tobacco Smoke and 
        Public Health, Science, vol. 208, pp. 464-472 (1980).

(12)    See, e.g., S. Turner, et al., Measurements of Environmental Tobacco 
        Smoke in 585 Offices, Env. Int., vol. 18, pp. 18-28 (1992); 
        C. Proctor, N. Warren, and M. Bevan, Measurements of ETS in an 
        Air-Conditioned Office Building, Env. Tech. Lett., vol. 10, 
        pp. 1003-1018 (1989).

(13)    Repace and Lowrey (1980), supra note 11, at 471.

(14)    J.L. Repace and A.H. Lowrey, A Quantitative Estimate of Nonsmokers' 
        Lung Cancer Risk From Passive Smoking, Env. Int., vol. 11, pp. 3-22, 
        at 12 (1985).  This study was not funded or sponsored by EPA.  Repace 
        apparently undertook the study on his own initiative.  The source of 
        his funding has never been revealed.

(15)    Reviews critical of the Repace and Lowrey risk assessment, calling 
        their methodology and conclusions into question, were completed by 
        EPA's Carcinogen Assessment Group prior to publication of the Repace 
        and Lowrey paper.  See E. Anderson, Repace and Lowrey's Estimate of 
        the Lung Cancer Risk from Passive Smoking (undated); H. Gibb, Repace 
        and Lowrey's Estimate of the Nonsmokers' Lung Cancer Risk from 
        Passive Smoking (undated).  In addition, the Repace and Lowrey paper 
        was criticized by the Congressional Office of Technology Assessment 
        in Passive Smoking in the Workplace:  Selected Issues, pp. 21-22 
        (May 1986).  Other scientific articles criticizing the Repace and 
        Lowrey risk assessment as well as their earlier work on ETS include 
        A. Gross, Risk Assessment Relating to Environmental Tobacco Smoke, 
        Environmental Tobacco Smoke, Proceedings of the International 
        Symposium at McGill University, D.J. Ecobichon and J.M. Wu, (eds.), 
        Lexington Books, Lexington, Mass., pp. 293-302 (1990); N. Balter 
        et al., Causal Relationship Between Environmental Tobacco Smoke and 
        Lung Cancer in Non-Smokers:  A Critical Review of the Literature, 
        Proceedings of the 79th Annual Meeting of the Air Pollution Control 
        Association (1986); A. Arundel et al., Nonsmoker Lung Cancer Risks 
        From Tobacco Smoke Exposure:  An Evaluation of Repace and Lowrey's 
        Phenomenological Model, J. of Env. Sci. and Health, vol. 84(1), 
        pp. 93-118 (1986); M. Lebowitz, The Potential Association of Lung 
        Cancer With Passive Smoking, Env. Int., vol. 12, pp. 3-9 (1986); 
        P. Burch, Health Risks of Passive Smoking:  Problems of 
        Interpretation, Env. Int., vol. 12, pp. 23-28 (1986).

(16)    A few representative examples include:  G. Gori and N. Mantel, 
        Mainstream and Environmental Tobacco Smoke, Reg. Tox. and Pharm., 
        vol. 14, pp. 88-105 (1991); M. Reasor and J. Will, Assessing Exposure 
        to Environmental Tobacco Smoke:  Is It Valid to Extrapolate From 
        Active Smoking?, J. Smoking-Related Dis., vol. 2, pp. 111-127 (1991); 
        J. Fleiss and A. Gross, Meta-Analysis in Epidemiology, With Special 
        Reference to Studies of the Association Between Exposure to 
        Environmental Tobacco Smoke and Lung Cancer:  A Critique, J. Clin. 
        Epidemiol., vol. 44, pp. 127-139 (1991); F. Adlkofer et al., Exposure 
        of Hamsters and Rats to Sidestream Smoke of Cigarettes, Preliminary 
        Results of a 90-day-Inhalation Study, Proc. Indoor Amb. Air Qual. 
        Conf., London, pp. 252-258 (1988); A. Arundel, T. Sterling and 
        J. Weinkam, Exposure And Risk Based Estimates of Never Smoker Lung 
        Cancer Deaths in the U.S. in 1980 From Exposure to ETS, Proc. Indoor 
        Amb. Air Qual. Conf., London, pp. 242-250 (1988); J.P. Vandenbrocke, 
        Passive Smoking and Lung Cancer:  A Publication Bias?, Br. Med. J., 
        pp. 296, 390-391 (1988).

(17)    Committee on the Institutional Means for Assessment of Risks to 
        Public Health, National Academy of Sciences/National Research 
        Council, Risk Assessment in the Federal Government: Managing the 
        Process, pp. 151, 153 (1983).

(18)    This statement was contained in an undated background summary of the 
        risk assessment entitled "Findings in a Nutshell," prepared by EPA 
        sometime in mid-l991.  The summary was given to the Occupational 
        Safety and Health Administration, the federal agency that has 
        authority to regulate indoor air quality in the workplace.

(19)    According to his resume, Mr. Rosner has a bachelor of science degree 
        in occupational therapy and a master's degree in business 
        administration.  His work experience includes jobs as a press intern, 
        restaurant manager, recruitment coordinator of Big Brothers/Big 
        Sisters of Tacoma, radio announcer, founder of an organization "to 
        tackle Seattle's rising crime rate" and as Executive Director of the 
        Smoking Policy Institute.  Nothing in Mr. Rosner's education or 
        professional background suggests that he is "uniquely" qualified to 
        assess the "technical and scientific literature on tobacco smoke 
        exposure and health impacts," as was claimed in an undated memorandum 
        purporting to justify the award of the policy guide subcontract to 
        SPI on a sole-source basis.

(20)    A June 1991 Report by the House Subcommittee on Oversight and 
        Investigations identifies ICF as one of EPA's ten largest 
        contractors, with active contracts having a potential total value of 
        more than $300 million.  The Report notes that audits of ICF's work, 
        performed for EPA by the Defense Contract Audit Agency, had found 
        "numerous problems," including instances in which ICF billed EPA for 
        subcontractor charges before ICF had paid the subcontractors 
        (Report, p. 25).  Apparently, EPA also has made it a practice to use 
        ICF as a vehicle to provide subcontracts to consultants selected by 
        EPA.  As indicated earlier, EPA's cozy relationship with its 
        contractors and negligent management practices in connection with 
        contracting procedures have been the subject of an ongoing 
        investigation by the Oversight Subcommittee.

(21)    United States Environmental Protection Agency, Advisory Committee 
        Charter, Science Advisory Board, November 6, 1987.

(22)    The decision subsequently was reversed on legal grounds, although 
        determinations concerning the persuasiveness of the expert testimony 
        and other factual matters were left undisturbed.  Le Procureur 
        General du Canada v. RJR-MacDonald. Inc., No. 500-09-001296-912 
        (Quebec Court of Appeals, January 15, 1993).

(23)    Impartial Panel for Smoking Study Proves Hard to Find, Los Angeles 
        Times, November 24, 1990, p. A-27.

(24)    Drs. Benowitz, Blot, Eatough, Hammond, Kabat, Lebowitz, Samet and 
        Weiss had been responsible for scientific studies concerning ETS 
        cited in the first or second drafts of the risk assessment.

(25)    Dr. Rockette, for example, observed that "there is this issue of the 
        bias and potentially the systematic bias which the meta-analysis will 
        not control for * * *.  [Y]ou are dealing with an estimate of risk 
        [of] about thirty percent * * *.  [M]ost epidemiologists, if they did 
        a single study where they got a thirty percent risk, even if it 
        [were] statistically significant, [would] not be very excited about 
        it" (II, p. 19).  Even Dr. Samet concluded that "the [lung cancer] 
        chapter falls far short of doing an adequate job of hazard 
        identification and needs to go much further, in light of the Agency's 
        guidelines on hazard identification * * *" (II, p. 30).
 
        With respect to the quantitative risk estimates, the panel voiced 
        even stronger doubts.  Dr. Wesolowski stated that he thought "what 
        we're hearing is that we are a little bit weak on exposure, to say 
        the least, and there's going to be a need for a lot of research" (II, 
        p. 82).  Dr. Blot agreed, noting that "we're less sure than the 
        chapter presents as to the actual numbers of lung cancer deaths that 
        are due to environmental tobacco smoke * * * " (II, p. 87).  He also 
        felt that the inclusion of ex-smokers in the draft's risk estimates 
        was "really poorly justified" (II, p. 94).  Dr. Laties, one of the 
        few panelists who actually had read the public comments, strongly 
        recommended that a Japanese study by Dr. Hirayama be dropped based on 
        what he characterized as "devastating" criticism by Dr. Kilpatrick, 
        one of the outside scientists who had reviewed and commented on the 
        draft (II, p. 99).  EPA's risk estimates in the first draft depended 
        heavily on this early, extremely controversial study.

(26)    The second draft revealed for the first time that the authors of 
        several of the chapters had acted as subcontractors to ICF 
        Incorporated.  As noted earlier, the EPA Inspector General has 
        concluded that all of those subcontracts were awarded non-
        competitively and that at least two violated federal contracting 
        procedures.  In addition, as with the technical compendium and 
        policy guide, some of the people who contributed to the revised ETS 
        risk assessment are vocal antismoking activists.  Judson Wells, who 
        contributed an important appendix to the revised risk assessment on 
        smoker misclassification rates, is a retired chemist who now devotes
        most if not all of his time to doing volunteer work for the American 
        Lung Association on the ETS issue.  Wells' claims about 
        misclassification rates were of vital importance to the lung cancer 
        conclusions of the revised risk assessment.

(27)    Specifically, the revised risk assessment used a 90% confidence 
        interval to judge statistical significance even though (1) a 95% 
        confidence interval had been utilized in all of the underlying 
        studies, (2) a 95% confidence interval is the more accepted measure 
        and (3) EPA had not previously utilized a 90% standard in any 
        previous risk assessment.  EPA has never attempted to explain this 
        departure from previous and accepted scientific practice.  One 
        commentator noted that "[t]o get scientifically valid data, there are 
        very strict rules and requirements on how and when you can apply 
        meta-analysis, and virtually all of them were violated in the EPA 
        analysis."  Investors' Business Daily, supra note 1.

(28)    The draft report stated, for example, that "[t]his assumption 
        [comparing MS and ETS to calculate lung cancer risks] may not be 
        tenable, * * * as MS and SS differ in the relative composition of 
        carcinogens and other components identified in tobacco smoke and in 
        their physicochemical properties in general * * *" (p. 6-6).  The 
        draft report also acknowledged that "[t]he concentration of smoke 
        components inhaled by subjects exposed to ETS is small compared with 
        that from active smoking. * * * Breathing patterns for inhalation of 
        mainstream smoke and ETS differ considerably * * *.  There are also 
        important differences in the physicochemical properties of ETS and MS 
        (see chapter 3).  These have been extensively reviewed earlier by the 
        National Research Council * * * and the Surgeon General * * *"  
        (pp. 7-2; 7-3).

(29)    As noted, EPA "stopped" in a most curious place.  It fully 
        incorporates data from a still incomplete study by Elizabeth Fontham 
        and coworker while ignoring the much larger, complete and fully 
        reported Brownson study -- which had been funded in part by NCI.  In 
        addition to having several years to run, Dr. Fontham and her group 
        have not yet published any data on ETS/lung cancer confounding 
        factors.

(30)    Committee on the Institutional Means for Assessment of Risks to 
        Public Health, National Academy of Sciences/National Research 
        Council, Risk Assessment in the Federal Government, pp. 151, 153 
        (1983).

(31)    Statement by William K. Reilly, Administrator, U.S. Environmental 
        Protection Agency, on Environmental Tobacco Smoke, January 7, 1993, 
        p. 1.

(32)    Id. at 3.

(33)    Id. at 4.