Indoor Air Quality Tribal Casinos

2. Mary Bauer CIH, CSP Compliance Assistance Specialist Eau Claire, WI 54701 715-832-9019 bauer.mary@dol.gov Indoor Air QualityTribal Casinos Clean & Healthy Tribal Casino Workshop Grand Portage Lodge & Casino, MN September 19, 2012

3. Mary Bauer 27 years w/ Federal OSHA in Eau Claire, WI 20 Compliance Officer 7 Compliance Assistance Specialist IH/ Safety CIH: Certified Industrial Hygienist CSP: Certified Safety Professional 1000 + Inspections My Background

4. OSHA’s Indoor Air Policy–Smoking • OSHA’s Jurisdiction • OSHA’s Inspection Process • Hot Topics • Resources Agenda

5. 2009 WI Act 12 • Where is indoor smoking allowed? • Private Residence • Retail tobacco store or tobacco bar • A room used as a residence by only one person in an assisted living facility or such a room in which all occupants have requested in writing to be allowed to smoke • Tribal casinos or facilities • Indoor smoking areas may not be established. • Businesses may establish outdoor smoking areas, as long as they are a reasonable distance from entrances Clean Air Acts - Wisconsin

6. OSHA Withdrew the 1994 Proposed Rule in 2001

7. OSHA Policy on Indoor Air Quality: Office Temperature/Humidity and Environmental Tobacco Smoke • Environmental Tobacco Smoke (ETS)Because the organic material in tobacco doesn't burn completely, cigarette smoke contains more than 4,700 chemical compounds. Although OSHA has no regulation that addresses tobacco smoke as a whole, 29 CFR 1910.1000Air contaminants, limits employee exposure to several of the main chemical components found in tobacco smoke. In normal situations, exposures would not exceed these permissible exposure limits (PELs), and, as a matter of prosecutorial discretion, OSHA will not apply the General Duty Clause to ETS. For further information to offer to employers/employees as guidance, you may wish to review a document published by the U.S. Environmental Protection Agency (EPA) about the health effects from environmental tobacco smoke, A Fact Sheet: Respiratory Health Effects of Passive Smoking. Additional information on indoor air quality in general can be found on the Indoor Air Quality Technical Links page on the OSHA website. OSHA Policy on Tobacco Smoke

8. …as a matter of prosecutorial discretion, OSHA will not apply the General Duty Clause to ETS. • http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24602 • February 24, 2003 OSHA Policy on Tobacco Smoke

9. INDOOR AIR QUALITY INVESTIGATION SECTION III: CHAPTER 2 • Tobacco Smoke.Sources: Cigars, cigarettes, pipe tobacco. Acute health effects: Tobacco smoke can irritate the respiratory system and, in allergic or asthmatic persons, often results in eye and nasal irritation, coughing, wheezing, sneezing, headache, and related sinus problems. People who wear contact lenses often complain of burning, itching, and tearing eyes when exposed to cigarette smoke. 6 Tobacco smoke is a major contributor to indoor air quality problems. Tobacco smoke contains several hundred toxic substances including carbon monoxide, nitrogen dioxide, hydrogen sulfide, formaldehyde, ammonia, benzene, benzo(a)pyrene, tars, and nicotine. Most indoor air particulates are due to tobacco smoke and are in the respirable range. OSHA Technical Manual

10. The American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) established recommended ventilation rates for indoor environments in 1973.2 • ASHRAE amended this standard in 1975 to specify the minimum value of 5 cubic feet per minute (CFM) of outdoor air per person be used in building design. This standard has been incorporated into the building codes of many cities and states.3 • The 62-1989 standard recommends a minimum of 15 CFM of outdoor air per person for offices (reception areas) and 20 CFM per person for general office space with a moderate amount of smoking. Sixty cubic feet per minute per person is recommended for smoking lounges with local mechanical exhaust ventilation and no air recirculation.4 • http://www.osha.gov/dts/osta/otm/otm_iii/otm_iii_2.html Recommended Ventilation

11. Mold • Ozone • Money Counting Rooms • Lack of Ventilation Other Air Quality Issues

12. OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970Does it cover Tribal Casinos?

13. (1) the general law touches exclusive rights of self-governance in purely intramural matters; • (2) the application of the general law to the tribe would abrogate rights guaranteed by Indian treaties or statutes; or • (3) there is proof by legislative history or some other means that Congress intended the general law not apply to Indians on their reservations. Tuscarora Rule

14. The business organization: Fully integrated logging, sawmill, manufacturing Owned and operated by the Tribe; operated on the Navajo Reservation Managed by a board appointed by the tribal committee and council Vast majority of employees were Navajo Navajo Forest Products Industries,692 F.2d 709 (10th Cir. 1982)

15. Holding: OSHA does not apply Navajo Treaty expressly gave right to exclude non-Indians from reservation OSHA’s right to require inspections would be inconsistent and jeopardize that treaty right Navajo Forest Products Industries

16. The business organization: Commercial farm, wholly owned and operated by Tribe on tribal land Sold products on national market; significant number of non-Indian employees “a normal commercial farming enterprise” Coeur d’Alene Tribal Farm, 751 F.2d 1113(9th Cir. 1985)

17. Holding: OSHA applies No treaty between Coeur d’Alene Tribe and the United States No interference with tribal governance or “intramural matters” (e.g., tribal membership, politics, inheritance rules, domestic relations) Coeur d’Alene Tribal Farm

18. The business organization: Timber and wood products operation, owned and operated by the Tribe, located on the reservation A management plan is established by the tribal council; nearly ½ of workforce is non-Indian Warm Springs Forest Products Industries, 935 F.2d 182(9th Cir. 1991)

19. Holding: OSHA applies A treaty which grants a Tribe a general right to exclude non-Indian from the reservation does not defeat OSHA’s applicability. (OSHA’s inspection rights are limited.) Contrary to Navajo Forest Products Following Coeur d’Alene, no demonstrable interference with tribal governance or intramural matters Warm Springs Forest Products Industries

20. The business organization: Wholly owned and operated construction business, with priorities and projects decided by tribal council Many of employees were non-Indian Projects included the Foxwood High Stakes Casino, located on the reservation Mashantucket Sand & Gravel, 95 F.3d 174(2nd Cir. 1996)

21. Holding: OSHA applies No treaty between the Tribe and United States Ownership and direction of a business enterprise by a Tribe does not – by itself – make its operations an act of tribal governance Here, the business’ activities are of a commercial and service character – not government It is significant that non-Indians are employed, and the Foxwood Casino project plainly operates in interstate commerce, attracting outside tourists Mashantucket Sand & Gravel

22. IF not exempted: • Tribal Land Operation • Federal OSHA • Contractors on Tribal Lands • Federal OSHA Has Jurisdiction • Private entities providing services • State Plan OSHA i.e. MNOSHA if in MN OR • Federal OSHA if Federal State such as WI What does that mean?

23. http://www.dol.gov/sol/media/briefs/menominee-12-28-2009.htm • http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22542 • http://www.oshrc.gov/decisions/html_2005/04-1000.html Jurisdiction References

24. OSHA Coverage • • All private sector employers and their employees in the U.S. and its territories and jurisdictions • Does not cover: • The self-employed • Immediate members of farming families with no outside workers • Mine workers, certain truckers and transportation workers, atomic energy workers • Public employees

25. Inspection Priorities • Imminent danger • Fatality and catastrophe accidents • Employee complaints • Referrals • Planned or Targeted inspections • Follow-up inspections

26. Non-formal Handled by “phone/fax” Employer investigates andresponds to OSHA Formal Signed Inspection conducted Investigation of Complaints

27. What is a CSHO? • Compliance • Safety and • Health • Officer • They are the federal employees who conduct OSHA inspections

28. Presentation of Credentials Opening Conference Records Review Program Review Walk-around Closing Conference On-Site Inspection

29. OSHA Citations • Inform employers and employees of: • Regulations and standards the employer allegedly violated • Hazardous working conditions • Proposed length of time set for abatement of hazards • Any proposed penalties

30. Post Inspection • May seek an informal conference or settlement prior to contest • Contest must be done within 15 working days • In writing to area office

31. Firing or laying off Blacklisting Demoting Denying overtime or promotion Disciplining Denial of benefits Failure to hire or rehire Intimidation Reassignment affecting future promotions Reducing pay or hours Section 11(c) Discrimination can include:

32. Workplace Violence Directive: 9/8/11

33. Health Care • Drug Seekers • Alzheimer / Dementia Patients • Physiological Patients • Domestic Violence • Retail esp. Late Night • Schools, Churches • Anything w/ Money Violence in the Workplace

34. Web Site

35. New Publications Page On the Web

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39. This information has been developed by an OSHA Compliance Assistance Specialist and is intended to assist employers, workers, and others as they strive to improve workplace health and safety. While we attempt to thoroughly address specific topics or hazards, it is not possible to include discussion of everything necessary to ensure a healthy and safe working environment in a presentation of this nature. Thus, this information must be understood as a tool for addressing workplace hazards, rather than an exhaustive statement of an employer’s legal obligations, which are defined by statute, regulations, and standards. Likewise, to the extent that this information references practices or procedures that may enhance health or safety, but which are not required by a statute, regulation, or standard, it cannot, and does not, create additional legal obligations. Finally, over time, OSHA may modify rules and interpretations in light of new technology, information, or circumstances; to keep apprised of such developments, or to review information on a wide range of occupational safety and health topics, you can visit OSHA’s website at www.osha.gov. Disclaimer