Document 6bEdYKpxqERMm392dnkNkM891

4 SP-2-^ (FOR CONFIDENTIAL USE ONLY - LAWYERS? WORK PRODUCT) UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT THE SOCIETY OFTHE PLASTICS INDUSTRY, INC., ) ) /V2 !77VhdoyIl <JM&j Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR; PETER J. BRENNAN, SECRETARY, DEPARTMENT OF LABOR; and JOHN H. STENDER, ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH, Respondents. ) 3 ) ) ) ) ) ) ) ) ) ) ) No.74-2284 MOTION FOR EXPEDITED BRIEFING SCHEDULE AND EXPEDITED ORAL ARGUMENT This case involves a petition for review of a permanent standard concerning occupational exposure to vinyl chloride, 29 C.F.R. II 1910.93q, which was promulgated by the Occupational Safety and Health Administration, United States Department of Labor, on October 1, 1974. The standard involved has widespread economic consequences because vinyl chloride is the basic constituent in the manufacture of polyvinyl chloride, which is by volume the second largest plastic used in the American economy. The standard affects at least 700,000 American workers. The provisions of the permanent standard relating i i v* \ l c ( 1 t t lff \ to occupational exposure to vinyl chloride become effective GNc 00P94 p 2 On January 1/ 1975. In the period until January 1, 1975, the provisions of an emergency temporary standard relating to occupational exposure to vinyl chloride which was promul gated by the Occupational Safety and Health Administration on April 5, 1974, remain in effect. This emergency temporary standard provides that the permissible level for employee exposure to vinyl chloride shall not exceed a 50 ppm ceiling. Under the terms of the permanent standard, which become effective on January 1, 1975, no employee may be exposed to vinyl chloride concentrations greater than 1 ppm averaged over any eight-hour period, and no employee may be exposed to vinyl chloride at concentrations greater than 5 ppm averaged over any period not exceeding 15 minutes. The evidence presented by SPI and other industry witnesses at the hearing conducted by OSHA showed that levels of exposure required by the permanent standard are not feasible 1/ for polyvinyl chloride manufacturers to achieve. This 1/ The Occupational Safety and Health Act authorizes the setting of only those standards which can be feasibly met by the industry involved. The Occupational Safety and Health Act states that: "The Secretary . . . shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity . . 29 U.S.C. 655(b)(5) (emphasis supplied). (Cont'd) GENIC 009943 3 feasibility issue will also be the primary issue which will be raised by Petitioner on this appeal. Accordingly, it is essential that Petitioner obtain judicial relief from the Court in this case prior to January 1, 1975. In the event that such judicial relief is not obtained, Petitioner will be required by law to attempt to comply with an infeasible standard. Petitioner recognizes that under this set of facts the no^qial remedy would be to seek a stay of the agency's order and ai^aring on the merits as promptly as possible. However, in view ofvthe fact that approximately two and onehalf months remain until\the effective date of the agency's order, it is hoped that PetitaT&ner can obtain a full briefing and hearing on the merits within thl^time and avoid the necessity for seeking a stay and the effort^nd burden upon the parties and the Court of preparing the necess^y stay pleadings. Once the case has been briefed and argued ,T>he (Cont'd) This language was interpreted by the United States Court of Appeals for the District of Columbia Circuit in Industrial Union Dept., AFL-CIO v. Hodgson, F.2d , 1 OSHC 1631, No. 72-1713 (D.C. Cir., April 15, 1974), to mean that OSHA cannot "protect employees by putting their employers out of business -- either by requiring protective devices unavailable under existing technology or by making financial viability generally impossible." _____F.2d at ______ 1 OSHC at 1639. Thus the feasibility requirement of the statute has two aspects -- one technological and the other economic. GENC 00994? Court 4 - -J * ' *n that for statag^ C Accordingly, it is respectfully requested that the Court establish a briefing schedule for the parties which will provide that the record will be filed on October 29, Petitioner's brief will be filed on November 15, Respondents' brief will be filed on December 13, and Petitioner's reply brief shall be filed on December 20. It is then respectfully requested that the Court schedule oral argument in this case 1/ during the week of December 23. Petitions for judicial review of this same standard by the Occupational Safety and Health Administration, United States Department of Labor, have also been filed by Hooker Chemicals & Plastics Corp. and Union Carbide Corporation in the United States Court of Appeals for the Second Circuit (No. 74-2286 and No. 74-2308) and by Tenneco Chemicals, Inc. and Air Products and Chemicals, Inc. in the United States 1/ These dates are subject to further negotiation with the government. An alternative schedule would be Petitioner's brief on November 13, Respondents' brief on December 9, Petitioner's reply brief on December 16, and hearing during the week of December 16. GENC 009950 5 Court of Appeals for the Third Circuit (No. 74-1983 and No. 74-1982) and by Firestone Plastics Company in the United States Court of Appeals for the Sixth Circuit (No. ) Petitioners in the latter three cases have all filed motions to transfer their cases to the Second Circuit pursuant to Section 2112 of the Judicial Code, 28 U.S.C. g 2112 (1966) because judicial review proceedings were first filed in the Second Circuit. To the best of our knowledge, no petitions for review have been filed by any other party in any other Circuit. [Counsel for SPI is authorized to state that counsel for the Respondent, Occupational Safety and Health Administra tion, United States Department of Labor, consents to this motion for expedited briefing schedule and expedited oral argument and to the briefing schedule set forth herein.) Respectfully submitted, GENC 009951