Document KRygRo7qR5rR8D1brqvQved8N

PLAINTIFF'S EXHIBIT DOW-1682 ' ST007 1566 h ^$K FROM: R. D. (DICK) OLSON 1803 Building (517) 636-8295 l_ 377954 8-19-88 (DEn) REGULATION, ECONOMICS AND LAW (No. 161) A - 5 ST0 0 71567 / Waxman (D-Calif) that would revise EPA's system for setting pesticide residue limits. In particular, the groups sard they backed a provision in HR 4739 that would authorize EPA to modify or revoke tolerances to prevent an-imminent public health hazard. The citizen groups alsp asked for improved inspec tion of meat by the U/$. Department of Agriculture and better labeling bt/foods providing consumers with information on satjiratal fat, cholesterol, sugar, and salt. More funding for Ye^earch into reduced use of agricultural chemicals in farming also was recom mended by the coalition. Job Safety JUDICIAL DECISION DISRUPTS OSHA TIMETABLE ON CHEMICALS EXPOSURE LIMITS r / An Aug. 12 order by an administrative law judge extending post-hearing submission periods for a/con troversial rule that would reduce exposure limifs for hundreds of chemicals has disrupted the Occupational Safety and Health Administration's timetable'for the rulemaking and may prevent the agency from com pleting the rule before the end of th^ Reagan administration. / But the agency said Aug. 15 it will appeal the AU's order and suggest new dates to shorten the post- hearing periods. Administrative_Law Judge Michael/ H. Schoenfeld ruled that an Aug. 19 date previously suggested by OSHA for post-hearing submissions should be ex tended 90 days, until Nov. 14, toy post-hearing evi dence and data, and an additional/30 days, until Dec. 13, for post-heating briefs. Despite testimony about the Complexity and scope of the rulemaking, OSHA officially announced its in tention to reduce ^he exposure limits as long ago as October 1987, Schoenfeld tola the hearing. That fact, combined with the `'^ontinuons" gathering of scientific evidence on air contaminants, "lessen any claim of `surprise' in this rulemaking," he said. Nevertheless, Schoenfeld held that a "reasonable" post-hearing comment 'oeriod is necessary given the "minimal" pre-hearing Comment period permitted by the agency. The ALJ said that j(e Anticipated no requests for further extensions.' The judge's order dame ak a result of motions made both before and during the hearings for additional time to consider evidence and submit data, including exposure levels aiid feasibility information. Hearings were held July 28 to Aug. 15 l>n the agency's June 7 proposal to reduce or change\permissible exposure limits for 428 chemicals and otnpr air contaminants. tional time had demonstrated that their interest in a hearing recess was "greater than the harm engen dered by the delay in implementation of improved worker protection, as well as the inconvenience and other practical problems which would be/generated by recessing the hearing to be reconvened at a later date." j Nor is there any evidence that any/participant was denied the opportunity to fully testify or question other interested parties on their testimony, according to the AU. / The hearing judge's order noted that OSHA's use of the term "cross-examination" is/`unfortunate" in de scribing the questioning of witnesses by other interest ed parties. Moreover, he said, "the term evokes images of an adversarial courtroom proceeding and has a tendency, to incite lawyers more accustomed to that arena." \ f 'Beasonabie' Timetable Schoenfeld said that suggestions from participants on "reasonable" time frames for post-hearing submis sions ranged from\ one week to nine months. In reviewing past OSHA rulemakings for guidance, the hearing judge said the post-hearing comment peri od should be commensurate with the most expansive one allowed in thdi hazard communication, cancer policy, benzene, or asbestos rulemakings. Post-hearing submissions were ^iccfepted for 120 days in the hazard communication and eancer policy rulemakings, 60 days for benzeiie, apd almost four months for asbestos. / Schoenfeld sqid he also weighed the high priority assigned by OSHA to this particular rulemaking up dating 20-yeay-old exposure limits. In addition, he said, "I have been reminded daily during the 11 days of testimony/of the complexity and scope of the pro posed rule,/and observed xhe intensity with which those affected view the siibject of modifying [the] exposure limits." \ In a statement at the close of official testimony Aug. 15, ^abor Department Attorney Charles Gordon told hearing participants tha^ OSHA would appeal Schoenf/ld's decision to the senior administrative law judge. / \ Gordon also thanked participants for their patience during the extended hearing period, and complement ed them on their effective testimony and cross exami nation of witnesses. The agency will be "fully considering" all evidence and information presented to it, Gordon said.D Job Safety bearing Extension benied Schoenfeld/determined, however, that sufficient time had been provided by the agency for testimony and cross-examination during the pjiblic hearings and declined to/ either extend the heartngs or reconvene them at a later date. In examining OSHA's conduct of the hearings, Schoenfeld found that no participant requesting addi COURT CASES SUGGEST `PRUDENT ADDITIONS' TO OSHA ASBESTOS RULES, ATTORNEY SAYS TORONTO--{By a BNA Staff Editor)-While the Occupational Safety and Health Administration's as bestos regulations "attempt to provide employees with a safe and healthful work environment," court cases also afford employees rights, an Ohio attorney said Aug. 10, advising that warnings be given to past Copyright O 1988 by THE BUREAU OF NATIONAL AFFAIRS. INC., Washington, D.C. 20037 0148-8155/88/S00.50 For Your Information 377955 From Penny L Parkin Washington, DC Office A - 6 (No. 161) REGULATION, ECONOMICS AND LAW (DER) 8-19-6G 9S I LOO IS and current employees, whether office workers or those who actually handle asbestos. Addressing insurance attorneys at the 1988 annual meeting of the American Bar Association, Cincinnati attorney Robert A. Dimling warned that although the exclusive remedy of worker's compensation has gen erally withstood the test of asbestos litigation, court cases suggest that prudent employers supplement OSHA requirements. OSHA requires some monitoring of ambient air in all buildings containing asbestos, Dimling told the attorneys, and if asbestos fiber concentrations exceed an "action level" of 0.1 fibers per cubic centimeter of air as an eight-hour time-weighted average, further monitoring is required. Employers must notify affect ed employees, in writing, of the results of any moni toring within 15 working days, Dimling explained. In addition, Dimling continued, employers must no tify affected employees when the maximum permissi ble exposure limit of 0.2 fibers of asbestos per cubic centimeter of air over an eight-hour time-weighted average is exceeded. Courts have recognized several asbestos-related ex ceptions to the general bar against employees suing employers, Dimling told the gathering, and in so doing created additional employee rights. Dimling predicted that the rights of office workers affected by asbestos may emerge as an area of future litigation in light of Layne v. GAF Corp., Ohio CtCommPls, No. 84-074194 (1987), in which a Cleve land jury awarded $360,000 to an office worker whose only known asbestos exposure was from working in a contaminated building. "In light of Layne, it would seem prudent to accord all employees potentially associated with asbestos or working in an asbestos-contaminated area the same notification and medical testing rights and protection, rather than to distinguish between those who actually handle asbestos and those who simply may inhale the airborne particles," he said. The New Jersey Supreme Court recognized another exception in Millison v. E.I. duPont de Nemours & Co., 501 A2d 505 (1985), Dimling said, where it held tha* ar. employer who willfully concealed an employ ee's asbestos related disease until it had progressed significantly was subject to an "intent-to-injure" ex ception to the rule. Third Party Duty Workers have also circumvented the exclusive rem edy rule by suing third parties such as building owners and asbestos manufacturers, Dimling said, citing the Washington Supreme Court's 1987 decision in Lockwood v. A.C. & S. Inc., 744 P2d 605. In Lockwood, the plaintiff was a rigger who worked in Seattle shipyards between 1942 and 1972, Dimling explained. While the worker normally did not work with asbestos containing materials, he shared work space with those who did, and in 1979 he was diagnosed with asbestosis. According to Dimling, the worker sued an asbestos manufacturer, arguing that if the manufacturer had warned all current and former workers about the dangers of asbestos, he would have quit smoking, thereby postponing the onset of his disease. The court held that where a person's susceptibility continues even after direct exposure to a product ceases, "the manufacturer still has a duty after expo sure to exercise reasonable care to warn the person of known dangers, if the warning could help to prevent or lessen the harm."D Banking OCC PROPOSES RAISING SEMIANNUAL ASSESSMENT ON BANKS BY 14 PERCENT The Office of the Comptroller of the Currency it is proposing to raise its semiannual assessment schedule for national banks. District of Columbia banks, and federally licensed branches and agencies of foreign banks by 14 percent, "to avoid revenue shortfalls." In a notice of proposed rulemaking scheduled for publication in the today's Federal Register, the OCC said it needs to adopt the increase to ensure "that the OCC can continue to fulfill its statutory, regulatory and supervisory responsibilities." The OCC will accept comments on the proposed increase for 30 days following publication of the no tice in the Federal Register. Under the current assessment schedule, the agency at year-end 1988 will either just break even or will incur a "small deficit," the OCC said. "Unless the assessment schedule is revised, OCC faces larger deficits and beyond as a result of slower asset growth, the deteriorated condition of the nation al banking system, and the costs of maintaining OCC's supervisory mission," the agency said in its proposal. The OCC also cited recent consolidation of the bank ing industry, the "increased complexity of the finan cial industry, and the increased responsibilities" placed on the OCC by Congress as factors for the agency's revenue shortfalls. Since 1934, the number of national banks has de clined by 4 percent, due to mergers and failures. Bank profits are at their lowest levels in a decade, and bank failures and the number of problem banks "continue at post-Depression highs," the agency said. Meanwhile, bank asset growth from December 1986 to December 1987 was less than two percent, and the OCC projects that growth will continue to be low "for the next several years." The OCC said nearly 25 percent of the national banking system's assets and 27 percent of all national banks are "receiving special supervisory attention" from the agency because of their financial troubles. - To deal with its increased responsibilities and work load, the agency has increased its staff from 2,850 to about 3,200. In 1989, the agency will try to beef up its staff to 3,246. National bank fees will be raised "only to the extent necessary to support OCC's increasing and evolving supervisory responsibilities," the OCC said. 377956 Copyright 1988 by THE BUREAU OF NATIONAL AFFAIRS, INC., Washington. D C. 20037 0148-8155/88/$00.50