Document BvMNn1NJnmBprdkOaKvRVR7q8

m c N Rr L,D'*u0f*0 BlCHARO M f iif)0*S5, III Albert j, b e vcridsc, in GaRt h, raise A JAMES BARGES HAROlO MiMUMiS ChbistqphCR m OUCalCv, jR KEVIN m roLEt JONATHAN Z CANNON ANDREW E,MISHKIN ChablC5 a ra tni 2 :a SuEOCCnm GIBBONS SCOTT w. BOWEN lav*. Of fees Beveridge:. Fairbanks & Diamond One Fabragut Square South Washington. D. C. 20006 TCLEPHONE (ZOtt 636-7800 February 11, 1977 CARL CARDLCr COUNSEL CABLE ADC = CSS 'iNOCAW- Donald W. Fowler, Esquire Lands & Natural ResourcesiDivision Pollution Control Section, Room 2634 Department of Justice Washington, D.C. 20530 Dear Mr. Fowler: On November 19, 1976, the Environmental Defense Fund (EDF) filed a petition in the United States Court of Appeals for the District of Columbia Circuit to review the National Emission Standard for Vinyl Chloride pursuant to Subsection 307(b)(1) of the Clean Air Act. EDF v. Train, No. 76-2045 (D.C. Cir., filed Nov. 19, 1976). The Society of the Plastics Industry, Inc. (SPI) filed a Motion for Leave to Intervene on December 9, 1976. The Motion was granted by order of January 18, 1976. On or about January 10, 1977, I discussed this case with Robert Rauch, Counsel for EDF. He advised that negotiations between EDF and EPA were contemplated to attempt to reach a compromise settlement of the case. --7 There have been two meetings between EDF and EPA. On behalf of SPI, I requested permission to attend the first session, on January 18, 1977. You denied the request for the Department of Justice (DOJ) on the ground that (1) you have not received an order granting SPI leave to intervene and (2) you were uncertain, in any event, whether SPI had the right to attend the negotiating session. On January 31, 1977, EDF, EPA and DOJ held another negotiating session. SPI was not iavited to attend this session although you indicated you would consider including SPI in future meetings. We understand that another meeting will be held and we have not yet been advised whether SPI will also be excluded from that meeting. T COLORITE 018259 Beveridge:. Fairbanks 6. Diamond Donald W. Fowler, Esq. February 11, 1977 Page Two SPI hereby requests that it be advised of, and that its representatives be permitted to attend, all future meetings and negotiating sessions attended by representatives of both EDF and EPA or DOJ concerning settlement of EDF v. Train or relating to the National Emission Standard for Vinyl Chloride or possible changes thereto, or relating to vinyl chloride or vinyl chloride emissions. Please advise us by February 15, 1977 whether you will grant this request. GHB/sm The Society of the Plastics Industry cc: Jerome H. Heckman, Esq. Theodore L. Garrett, Esq. Robert J. Rauch, Esq. Ronald S. Naveen, Esq. COLORITE 018260 hENRY l. OiAUOso RICHARD M, f AIR - a *. s, m ALBERT j &CvER'DiC,C GARY H BAISC A.JAMES 0AONES HAROt-O LWAM Christopher h . suckley, j ntvrn m, fOLt--* JONATHAN l C*NNON ANDRE.*. t u'i"' N Charges a tato : a SUCDCEH Y G'SiiO'^S SCOTT W. BOWEN LAW OFFICES Beveridge. Fairbanks & Diamond One Farragut Square South Washington, D. C. 20006 TELEPHONE (ZOZ) S30-?eOO February 22, 1977 CARl CarOlEy Or COunSEl Cable address `inolaw" Jerome Heckman, Esquire 1150 17th Street, NW Suite 1000 Washington, DC 20036 Dear Jerry: This letter will bring you up to date on the present status of Environmental Defense Fund, Inc. (EPF) v. Train, No. 76-2045 (D.C. Cir., filed Nov. 19, 1976). The Court has not yet acted on our Motion to Expedite Briefing and Oral Argument. As expected, and as we pre viously advised you, EDF opposed the Motion. While EPA did not oppose the concept of expedited briefing, it pro posed a longer period in which to file its brief than SPI had proposed. You are aware that EDF, EPA and the Department of Justice have held negotiations in an attempt to settle the case. An other meeting was held last Friday, February 18. We were not invited to attend, but I spoke with both' Don Fowler of Justice and Bob Rauch of EDF after their meeting. On the basis of those conversations, it appears that the parties believe a settlement is possible along the following lines: 1. The existing Standard for Vinyl Chloride would remain unchanged. 2. At some time in the future, EPA would issue additional proposed regulations to lower the existing 10 ppm standard on existing sources. Neither _the suggested lower target emission figure no"r_the date on which it would take effect "has been determined, but EDF and EPA believe they can"reach agreement on these points shortly. Since all parties recognise that the feasibility of lowering emissions to the target figure in the time allowed cannot now be deter mined, the proposecTfegulation would also provide an opportunity for affected 'companies to demon strate!' "that the new standard would" not be technolog ically feasible. * COLORITE 018261 Beveridge, Fairbanks & Diamond Jerome Heckman, Esquire February 22, 1977 Page 2 3. The proposed regulation would commit EPA to a review of the Vinyl Chloride Standard when the new lower emission" standard on existing sources becomes effective. 4. Finally the proposed regulation would include a separate "newjource" standard for plants which are constructed (and possibly "modified"). The standard for new sources presumably would be tighter than that for existing sources. Again, the precise date on which such a standard would take effect has not yet been determined. Two aspects of this possible settlement proposal deserve emphasis. First, EDF, Justice and EPA have reached agreement only on the broad outlines for a settlement. At the present time there has been no agreement on detail, and I don't be lieve that it is worthwhile speculating about all of the po tential problems which the settlement proposal raises. Second, when EPA proposes new regulations, SPI and all of its affected members will have the normal rights under the Administrative Procedure Act to comment on the proposal, to appear at a public hearing and to seek judicial review. The settlement proposal apparently would force EPA to establish a set time table for considering the lowering of _ vcm ..emissions , rather than allowing the Agency complete discretion as to whether and when it would consider the subject again. We must await more information on the details before we can advise you on a course of action. EDF believes that a written proposed stipulation should be ready in approximately ten days. We then would be given an opportunity to review it and to join, oppose, or take no position on a stipulated dismissal. There is no firm time table. Assuming the negotiations continue to progress, it is, likely that a stipulated dismissal would be ready by the time EDF's opening brief is due. That due date will depend on the Court's action on our motion to expedite, but under a normal schedule it would be March 29th, unless extended. AJB:ged COLOR!TE 018262 the Washington post. TUESDAY. FEBRUARY 22. 1 9 7 T Gershon Fishbcin - Are Cliemical Substitutes Safe? Nov is the time for Congress to consi der a national research roi*cy aimed at developing safer subslitules for prod ucts that are desirable, useful and even necessary--but that harm, even kill, workers v ho make them. The newspapers have been giving us details about pesticides, asbestos, vmvl chloride and other chemicals that go into our foods, our drugs, our homes and into scores of goods that add to creature comforts but take their toll in disease and death. We Justify their use on the grounds of the oft-repeated "benefits vs. risk" The writer is publisher of Environ mental Health Letter and. Occupa tional Health and Safefj Letter. ratio. The problem is that the consum ers derive the benefits while the work ers bear the risks. In coping with cancer-causing sub stances In the environment, the goal has been to come up v uh standards de signed to protect the workers and the consumers. Tms assumes some numeri cal threshold limit below which no threat to health exists. In other words, the objective is to regulate or control the substance, Bui is this wise public policy'' Bather than hassle for >ears over the correct numbers, based on guesstimates by sci entists and tempered by economic ar.d political realities, does it not make more sense to spend the time working on less hazardous substitutes with the ultimate objective of phasing out the dangerous products? The scientists can continue to adjust the threshold limits on the cancer-caus ing substances ar.d debate the engi neering techniques to keep the work ers from being exposed to dangerous levels of the chemicals. Cut they should be considered short-term steps, to be taken only while the long range goal of a total phase-out is being pursued. Sweden offers an example. The coun try has embarked on a national re search program to develop substitutes for all major uses of ashestos by 1080. Despite some setbacks, the program is essentially on schedule. Sweden acted after information on the health hazards of asbestos had ac cumulated to a point where the govern ment authorities simply said "no more.'' There it was regarded as merely another step in the continuing partner ship of unions and management over workplace conditions in a steady, but toxic and less effective than the prod ucts they were designed to replace, in the case of PCBs, some of the substi tutes are less hazardous to the environ ment but aren't as fireproof. Obviously, a decision for or against a substitute must include many factors. Many industrialists aren't sure they need or want the government's heip or even its guidance. They argue that the development of safer substitutes is pur sued relentlessly by competitive com panies in the interests of both safety and profits. A toxicologist for a leading chemical company put it this wav: "We're all making major investments to develop substitutes simply because the company that car. market a safer product is going to make a fortune." Others don't believe that conven tional marketplace economics work on behalf of safety, pointing to the recent proliferation of pesticides and thou sands of other chemicals--some harm ful. some not--as evidence that the op posite is true. It is possible that the new Toxic Substances Control Act may offer an administrative tool to encourage the development of safer products. Under that law, the EPA administrator has au thority to give pre-marketing approval or disapproval of chemical which may, in his Judgment, present "unreasonable risk" to health or environment. Rather than make a go or no-go deci sion on such chemicals, would it not be possible to approve some of them for a specified period, say three years, on the condition that the time be spent by the company in developing safer substi tutes for them? Legal authorities are divided on whether the law gives the administrator that much flexibility. A court test might provide clarification and, if necessary, an amendment to the law. The result could be safer homes, offices and factories. t COLORITE 018263 CHEMICAL EXEC SEES 'ECONOMIC DISASTER' I naus^ry !? ngiiYS caranw^* ^^ By JAMES MtQLEENV A representative of the stale`s chemical industry yesterday told a Sen ate cunimivaon its proposal to baa !6 cancer-causing agents imm emission into the air would be an "economic disaster " Chris llan.'en. vice chairman of the Chemical Industry Council, testified that a ban on polyvinyl chloride, used for piii'iics. alone would force the closing of 110 production and support plants in the state Jeav mg do.oJi) persons jobless, "The elimination uf oth.er chemicals on ihe list would have similar major economic consequences." Hamen told the commission at a hearing in Trenton on legislation calling for the ban. efforts to control cancer through the tederal worker safety programs ar.d tne environmental Protection Agencm, v.htch he said was "a reasonable tar.di sound path to follow." A coalition of environmental groups, represented by Dr. Samuel S. Epstein, professor of environmental medicine at the University of Illinois School of Public Health, strongly, coun tered the chemical industry arguments over who the economic victims actually are. Dr Epstein said environmental and occupational cancer-caur.r.g agents,cos: 'the public SIS billion a vear in lost wages earmngs arte medical expense; He cnarged the cnemical .rcustr.es with vv iaely ignoring exbimg constra.r.ts to the extent "iota! chaos" reptesems the present situation. "You and your commission are Irving to control this anatchy," Dr Ep stein said, calling the proposed ban "tne iPlease turn to Page 9 > Sen John Skevin iD-Eergem. com mission chairman and sponsor of the legislation, cuttvened tite hearing to as sess the economic impact of the panel's recent recommendations to reduce the relatively high rates of cancer in the iliite. The commission also heard testi mony from environmental groups, and state labor and business leaders Hansen said the ban "would launch an era of economic disaster in New Jer sey that is almost incalculable " He said tne chemical industry, the largest m the state, employs HJrt.Ooo workers, with total sales near slO billion a vear If polyvinyl chuhcide. used it) the manulaciure uf plastics, were oar,tied, he cited tor instance, it uoulo aitcwt such things a> recorcs. sporting gratis. Iluor tiles, lood packaging and nuuse sid ing. Although live pirn's manufacture ihe substance directly, ne said armher 111 convert the resin into the !mushed products Hansen said the industry supports Carcinogen ban fouahf *w (Continued from Page One) first comprehensive state legislation de signed to protect the public from expo sure to industrial carcinogens.'' Dr. Epstein also urged the commis sion to broaden its proposed ban to in clude "probable" as well as oroven cancer-causing agents. In other testimony, Acting State Labor and Industry Commissioner John Horn said the department has been un able to estimate the potential economic and employment effects of such a ban. Horn, along with ALF-CIO Presi dent Charles Marctrr.fe. urged eautton berore moving toward ,-uch a crastic step as an outright tan. Marcianfe called such a step "sim plistic," while Ham. in a statement read by an assistant, said such bans were better left in the hands of existing state and federal agencies to consider admin istratively. Also, Donald H. Scott, president of the New Jersey State Chamber o; Com merce, said less drastic steps have been taken in the past to control carcim^"^- materials. = "We are told that X-rays are the most powerful carcinogenic haem." he sc;d. "ft would be :.v, rarer t." car. me use of this most ^:.c::cial' heakr-ctuv. nv>; "Because research has c.vkr.cate" permissible exposure levels and it c..r be handled with adequate precautions, a.n otherwise dangerous agent is turned into a benefit lor people " X COLOR1TE 018264 ^*c*4*9p; k:/ iyJS*. O*?.* *s*m *LDa* , u C . * DO C, 'J1 0*5' . AHvAfi' y^i' M'-*u1y^jL:5k'iS Cmb a m, 8vCXi,'t/J , ` / / : ,'A`r`iON CHAi.^i A PA'S ;^* j,t;tLs m . o e s o n s SCO' T r* t?0*N EN LAW Ofr|C^S Beveridge. Fairbanks & Diamond One Farragut Square South Washington, D. C. 200O6 TELEPHONE (502; 636*7000 February 24, 1977 CARL EARDLE* OF COUNSEL CABLE ADDRESS 'iNOLAw" Jerome H. Heckman, Esq. Keller and Heckman 1150 17th Street, N.W. Suite 1000 Washington, D.C. 20036 Dear Jerry: We have been advised by the U.S. Department of Justice (DOJ) and the Environmental Defense Fund (EDF) that agreement has been reached to file a joint motion to dismiss without prejudice EDF v. Train (C.A.D.C. 76-2045). EDF wants the suit dismissed without prejudice because in the event a settlement is not consummated, the suit can be reinstated. The DOJ will provide us with a draft of the proposed settlement within the next ten (10) days.-'' We are advised that it follows the general outline provided to you in Albert Beveridge's letter of February 22, 1977; however, we can add one piece of new information. With respect to the existing Vinyl Chloride Standard, it would be lowered from the present 10 ppm standard to 5_^ppm within three (3) years from the date of promulgation. The goal of EDF is to have an amended Standard promulgated by the end of this calendar year. When the amendments are proposed, SPI and its members will have the opportunity to comment and petition for judicial review under Section 307 (b) (1) of the Clean Air Act. We cannot comment on the stipulation until we see it: however, it is our initial reaction to oppose any dismissal without prejudice. COLORITE 018265 Beveridge, Fairbanks & Diamond Jerome H. Heckman, Esq. February 24, 1977 Page Two Medical Dr. Roy Albert has advised us that the meeting scheduled with Dr. Maltoni on February 14, 1977, was cancelled because Dr. Maltoni was ill. A new meeting has not been rescheduled, but Dr. Albert is hopeful it will be within the next thirty (30) days. If you have any questions, please advise. Sincerely yours GHB/sm COLORITE 018266