Document OzmK36Xdm6gjpQqKQydZnaO3Q

Lead Industries Association, Inc. 292 Madison Avenue New York, N. Y. 10017 Telephone: (212) 532-2373 Environmental Health Department September 26, 1980 TO: FROM: All Official Members - LIA LIA Environmental Health Committee Jerome F. Cole On September 25, 1980, the industry petitioners submitted a joint petition for rehearing and suggestion for rehearing en banc to the U.S. Court of Ap peals for the District of Columbia Circuit on that Court's decision uphold ing the OSHA standard for lead. The enclosed petition was prepared by LIA counsel, Debevoise, Plimpton, Lyons and Gates, who serve as the liaison counsel for the industry petitioners. The petition outlines the reasons why the industry feels that the decision should be reviewed and it is suggested that the entire nine-judge Court partic ipate in this review. At this time, it is not known when the Court will take action on this petition. Jerome F. Cole Director, Environmental Health Enclosure iko L I 4 C 3 -5 N 3710 Table of Contents CONCISE STATEMENT OF THE ISSUES AND THEIR IMPORTANCE .............................................. A. The Background of the Important Issues ............ B. This Case Presents Issues Of Exceptional Importance ............................................ JOINT PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC .............................................. 1. The majority distorted the nature of the rulemaking notice OSHA is required to give and improperly permitted OSHA to use se cret, ex parte reports by outside experts ... a. Notice of Rulemaking .............................................. b. Ex Parte Evidence ..................................................... 2. The panel majority incorrectly formulated and applied the substantial evidence test to OSHA's determination that the Standard is technologically feasible ....................................... 3. OSHA failed to demonstrate that the Stan dard is economically feasible or reason ably necessary; it also did not conduct the required cost-benefit analysis ...................... 4. The majority ignored the language and legislative history of the Act, and misinterpreted the Supreme Court's ruling in Whirlpool, in concluding that OSHA has authority to require employers to provide full earnings protection and job security to all workers in the lead industries ............ a. General Authority under the Act .................... b. The Legislative History of the Act ............ c. The Language of the Act ...................................... Conclusion ................................................................................................... L* ge iv iv v 1 11 4 8 10 154 * * * * * 20 21 21 25 25 -i- LI4C3305 I Cases Table of Authorities Page AFL-CIO v. Marshall, 617 F.2d 636 (D.C. Cir. 1979 ) ............ ................................................................................. vii, 7, 11, 17 American Iron & Steel Institute v. OSHA, 577 F.2d 625 C3d Cir. 1976), cert, granted, 100 S.Ct. 3054, cert, dismissed, U.S. ( 1980) ............................................................................................ 13 ASG Industries, Inc. v. CPSC, 193 U.S. App. D.C. 169, 593 F.2d 1323, cert, denied, 444 U.S. 864 ( 1979) ............................................................ 13 Camp v. Pitts, 411 U.S. 138 ( 1973) .......................... .. 18 Citizens to Preserve Overton Park, Inc, v. Volpe, 401 U.S. 402 ( 1971 ) ....... .................................. 10, 14 Ethyl Corp. v. EPA, 176 U.S. App. D.C. 373, 541 F.2d 1, cert, denied, 426 U.S. 941 ( 1976) ................... .................................................................. 5 Heme Box Office, Inc, v. FCC, 185 U.S. App. D.C. 142, 567 F.2d 9, cert, denied, 434 U.S. 829 (1977) ..................................................................... 8 Industrial Union Department v. American Petroleum Institute, 100 S. Ct. 2844 (1980) .. . 1-2, 11, 15-20 Industrial Union Department v. Hodgson, 162 U.S. App. D.C. 331, 499 F.2d 467 (1974) ............ vii Lead Industries Association v. OSHA, 610 F. 2d 70 (2d Cir. 1979) ____ _____ V............................... .10 Marshall v. West Point Pepperell, Inc., 588 F.2d 979" (5thCir. 1979) ....................................... 13-14 National Cable Television Ass'n v. United States, 415 U.S. 336, 342 ( 1974) ............................. 4 National Lime Ass'n v. EPA, 14 Environ. Rep. (BNA) 1509 (D.C. Cir. May 19, 1980) ...................... 2, 12, 14 -ii- LI AC 33 Of Cases Page National Small_Shipments Traffic Conference, --Inc. v. TCC, 191 U.S. App. D.C. 214, 590 F.2d 3^~(~978) ...................................................................... RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979) .. . ........................................................... Society of Plastics Industry, Inc. v. OSKA, 509 F.2d 1301 (2d Cir.), cert, denied, 421 U.S. 992 ( 1975) ..................................................................... Turner Co. v. Secretary of Labor, 561 F.2d 82 (7th Cir. 1977) ................................................................... United States Lines, Inc. v. FMC, 189 U.S. App. D.C. 361, 584 F.2d 519 ( 1978) ........................ Vermont Yankee Nuclear Power Corp. v. NRDC, Inc., 435 U.S. 519 (197b)".............. ..................... Weyerhaeuser Co. v. Costle, 191 U.S. App. D.C. 309, 590 F. 2d 101 1 ( 1978) .................................. Whirlpool Corp. v. Marshall, 445 U.S. 1 (I960) ....... .......................... ..."................................. ............. .. 8, 12 17, 19 13 17 8 1, 8 5 2, 21-23 Statutes and Regulations Occupational Safety & Health Act of 1970, 29 U.S.C. 651 t seq..................................................... Federal Coal Mine Health 4 Safety Act of 1969, 30 U.S.C. 843(b) (2)-(3) ............................................. 29 C.F.R. 1910.1001(d)(2)(iv)(c) ............................. passim 21-22 vii Miscellaneous Address by Eula Bingham, Assistant Secretary of Labor for OSHA, 1979 BNA OSHA Rptr. 1690 (April 26, 1979) ................................................................... 4 -iii- CONCISE STATEMENT OF THE ISSUES AND THEIR IMPORTANCE A. The Background of the Important Issues This case involves petitions for review of the regulation for occupational exposure to inorganic lead (the "Standard") issued by the Occupational Safety and Health Administration ("OSHA") pursuant to the Occupational Safety and Health Act (the "Act") on November 13, 1978. 43 Fed. Reg. 53007-14 (Nov. 14, 1978). The Standard was scheduled to become effective on February 1, 1979, but was administra tively stayed by OSHA on January 25, 1979, and then was partially stayed by th.. j Court on March 1 , 1 979 pending judicial review. The industry petitioners challenged the Standard on the grounds, inter alia, that the Standard was issued without adequate rulemaking notice and on the basis of ex parte evidence; was technologically and economically infea sible (OSHA admitted that it had not analyzed or estimated the cost of the final Standard, had not meaningfully esti mated health benefits, and had virtually no evidence con cerning the technological feasibility of the air-lead exposure limit); and contained requirements--particularly full job and wage protection for workers removed from exposure--that OSHA has no authority to promulgate. -iV"* li ac 33ce A panel of this Court affirmed the Standard by a split decision on August 15, 1980, as to major sectors of the lead industry, and remanded to OSHA for further con sideration with respect to certain other industries, but ordered these industries to comply with most aspects of the standard during the remand.1 Industry petitioners and intervenors here seek rehearing of so much of the Court's decision as does not fall within the boundaries of t' ' remand. B. This Case Presents Issues Of Exceptional Importance First, as pointed out by the dissenting opinion (Diss. Op. at 1-11), this case presents novel procedural, statutory and constitutional questions that even the major ity acknowledged were "very close" (Maj. Op. at 7 n.6) con cerning (a) the extent to which OSHA can issue a health standard materially different from the proposal that was the subject of the agency's rulemaking notice and hearings when the record could and would have been different if a proper 1. The majority decision was written by Chief Judge Wright, with Judge Robinson concurring. Judge MacKinnon dis sented. Pages in the panel's decisions are cited as "Maj. Op. at " or "Diss. Op. at ". Pages in OSHA's preamble explanation and appendices to the Standard (which appear in Volume 43 of the Federal Register (Nov. 14 and Nov. 21, 1978)) are cited by page and column (e.., 52981/3). LIac 33 -V- I notice had been issued, and (b) the propriety of obtaining and using secret, post-hearing reports and expert opinion evidence, on crucial issues, from outside consultants who had previously testified.2 Second, this case presents for the first time the issue whether OSHA meets its statutory obligation of demon strating the technological feasibility of a new regulation by substantial evidence when (a) it neither conducts nor refers to a single study concerning the technological fea sibility of the standard actually adopted, (b) the standard would force major industry sectors to rebuild all of their plants, from the ground up, in ier to incorporate novel and "speculative*1 technologies, and (c) OSHA relies solely on a "presumption" that the standard may be technologically feasible at some undefined point five to ten years in the future. Third, this case also presents for the first time the issue whether OSHA satisfies its obligation to demon strate that compliance with its regulations is economically "feasible" and "reasonably necessary" when the agency, by its own admissions, has not undertaken an analysis of cost 2. OSHA's proposed rule would have reduced the existing permissible air-lead exposure limit ("PEL") from 200 to 100 micrograms per cubic meter of air (100 ug/m3); the final Standard reduces the PEL to 50 ug/m3. -Vi- Lta r 3^ \r of compliance, has not prepared cost estimates for the standard, is unable to estimate "meaningfully" the health benefits from the new standard, and has not conducted a cost-benefit analysis of the standard to ensure that costs bear a reasonable relation to the benefits the standard is expected to yield. Fourth, this case raises for the first time in any circuit the issue whether OSHA has statutory authority to impose a medical removal protection ("MRP")3 which, as a "practical" matter, supersedes all applicable workmen's com pensation programs and which requires that a worker who has been removed from a lead-exposed job must retain his full 3. The issues raised by the MRP provision in the new lead Standard are, as recognized in both the majority and dissenting opinions (Maj. Op. at 66 n.63, Diss. Op. at 14 n.5), totally different from those arising out of the limited earnings protection provisions contained in the asbestos and cotton dust standards which this Court has considered. See Industrial Union Department v. Hodgson, 162 U.S. App. D.C. 331, 499 F.2d 467 (1974), and AFL-CIO v. Marshall, 617 F.2d 636 (D.C. Cir. 1979). Both of those provisions were limited to employees who were unable to wear respirators and for whom "a different position is available" which they are "able to perform". See, e.g., 29 C.F.R. 1910.1001(d)(2)(iv)(c). As OSHA admits (54441/2), the new requirement is a completely innovative proposal, applicable even when the worker's health is not endangered, even when the perceived hazard to the worker results from off-the-job activities, and even when the employer has no position available to which the removed worker can be transferred. The majority was quite correct, therefore, in stating that the provision is "relatively without precedent." See Maj. Op. at 12, 22 n.15, and 66 n.63. -vii- L^C33l2 I earnings and seniority, as if he had continued to work, re gardless of whether (i) his health is endangered, (ii) the reason for his removal is the employer's fault, or (iii) there is a position available to which he can be trans ferred. -viii- JOINT PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC For the reasons set forth below, and pursuant to Rules 35 and 40 of the Federal Rules of Appellate Procedure and Rule 14 of this Court's General Rules, the undersigned industry petitioners and intervenors jointly petition this Court for rehearing of the decision issued in this case on August 15, 1980. Further, they respectfully suggest that a rehearing eri banc should be held because the majority decision raises issues of exceptional importance, departs from precedents established by other decisions of this Court, and conflicts with decisions of the Supreme Court and other Courts of Appeals. Erroneously reading Vermont Yankee Nuclear. Power Corp. v. NRDC, Inc. , 435 U.S. 519 ( 1978), to shelter the agency from meaningful judicial scrutiny, the majority ef fectively ignored the Supreme Court's June 2, 1980 decision in Industrial Union Department v. American Petroleum Insti tute, 100 S.Ct. 2844 (1980), and permitted OSHA to engage in rulemaking based on flagrant, inexcusable speculation-speculation that was inevitable because of OSHA's inadequate notice of rulemaking and the resulting absence of any record evidence concerning the air-lead exposure level ultimately adopted. The rulings by the majority are inconsistent with Uic32i:- the Supreme Court's decisions in the American Petroleum In stitute case and Whirlpool Corp. v. Marshall, 445 U.S. 1 (198O), with decisions by this Court, and with decisions by the Courts of Appeals for the Third, Fifth, Sixth and Seventh Circuits.2* Although the majority purported to take a "hard look" at what the agency had done, its examination of each issue was blurred by a failure to focus on the relationship among the issues. The majority apparently did not appreci ate the fact that each issue arose from, or was made more pressing by, OSHA's indefensible leap from the proposed exposure limit of 100 ug/m3 (which had been the subject of the hearings) to the final Standard of 50 ug/m3 (which had not). As a result of the agency's post-hearing decision to adopt an exposure limit of 50 ug/m3, 4. Although upholding the Standard as to the major lead in dustries, even the majority was sharply critical of OSHA's actions. See, e.jj. , Ma j . Op. at 15 (OSHA was "careless or inefficient in its procedures throughout this rulemaking"); id,, at 50 ("the compliance rules in the final standard appear ill-drafted and ill-explained, especially in light of their departure from . . . the proposed lead rules"); i<i. at 59 (the agency's explana tion "is a tour de force of obfuscation"). Notwith standing these and numerous other criticisms, the majority proceeded to exonerate OSHA on point after point, disregarding the cumulative effect of OSHA's failures and completely white-washing the agency's improper actions. Compare National Lime Ass'n v. EPA, 14 Environ. Rep. (ENA) 1509, 1517-18 (D.C. Cir. May 19, 1980). 2 L J : r 32 14 OSHA deprived the parties of the opportunity to pre sent evidence on critical questions of fact; OSHA found itself forced to rely upon secret ex parte reports and opinion evidence from outside experts who had previously testified at the hearings; OSHA did not perform a cost analysis of the final Standard (54496/3) and did not have sufficient data available to derive a "meaningful quantification of cost" (52981/3); OSHA was compelled to make "highly speculative projec tions about future technology" (Maj. Op. at 145) based upon a hearing record that admittedly contained vir tually no evidence concerning the technological fea sibility of the 50 ug/m3 air-lead exposure level (OSHA Stay Br. at 6; 52977/3); OSHA was unable to estimate meaningfully the health benefits, if any, which could reasonably be expected to flow from the reduced exposure level (54427/1);5 5. Unlike most of the other substances that have been the subjects of OSHA's health regulations, lead is not a carcinogen. Indeed, as OSHA itself acknowledged (52964/1), the new Standard was designed not to protect workers from actual disease or illness but from bio logical "effects" which occur in the "absence of ill ness" . See Maj. Op. at 115 -- 1 ^ ("here . . . OSHA is acting to prevent, not overt early symptoms of a disease, but subclinical effects"); id., at 128 ("OSHA's case for a blood-lead level goal of 40 ug/IOOg ulti mately rests on its theory of subclinical effects"). 3 i T * C'33 2 f OSHA felt forced to adopt, for the first time, a full job security and earnings protection requirement to safeguard against the.possibility that the final Stan dard would not be workable. To condone OSHA's arrogant disregard of its statutory re sponsibilities would convert a statute that requires agency action to be "feasible", "reasonably necessary" and sup ported by "substantial evidence" into one that gives OSHA unfettered and unreviewable discretion.^ Such an uncon stitutional delegation of legislative authority was not in tended by Congress and should not be upheld by this Court* Cf. National Cable Television Ass'n v. United States, 415 U.S. 336, 342 (1974). 1. The majority distorted the nature of the rulemaking notice OSHA is required to give and improperly permitted OSHA to use secret, ex parte reports by outside experts. (a) Notice of Rulemaking. On October 3, 1975 OSHA published a notice of rulemaking proposing that the permissible air-lead limit be reduced from 200 ug/m3 to 6. See Address by Eula Bingham, Assistant Secretary of Labor for OSHA, to AEA Institute on Law, Science and Technology in Health Risk Regulation (April 20, 1979), reported at 1979 BNA OSHA Rptr. 1690 (April 26, 1979) (OSHA is not "prohibited from doing just about anything we want to do"); see also Ma j. Op. at 18 (the agency director "served her agency poorly by making statements so susceptible to an inference of bias"). LI if 33 It 4 I 100 ug/m3. Three years later, after 39 days of hearings, hundreds of written comments and extensive post-hearing analysis (all of which related to the proposed PEL of 100 ug/m3), OSHA promulgated a final Standard of 50 ug/m3. As the dissent notes, this Court, sitting jen banc, has said that a proposed rule, to satisfy an agency's ob ligation to provide adequate notice, "should be sufficiently descriptive of the 'subjects and issues involved' so that interested parties may offer informed criticism and com ments." Ethyl Corp. v. EPA, 176 U.S. App. D.C. 373, 541 F.2d 1, 48, cert, denied, 426 U.S. 941 (1976). Thus, this Court in Weyerhaeuser Co. v. Costle, 191 U.S. App. D.C. 309-, 590 F.2d 1011, 1031 (1978), remanded a regulation to the agency for new notice and comment because its "final conclu sions [were] far from the 'logical outgrowth* of the preced ing notice and comment process." The panel majority here admits that the difference between the proposed and final standards is "obviously sub stantial" and "greatly increases" both the number of em ployees "affected" as well as the "standard's economic and technological demands on industry." Maj. Op. at 46-47. Nevertheless, the majority concludes that the OSHA notice "adequately" informed interested persons of the substance of the final rule, and that such rule was a "logical outgrowth" of the rulemaking proceeding. To support this conclusion LIAO 3217 5 the majority opinion cites various statements in the notice that "portended" the course OSHA eventually steered. Id.. at 47. These "portents", as the record indicates, were wholly inadequate.? An administrative agency cannot shirk its obligation to give adequate rulemaking notice merely by in cluding in its notices boilerplate language that states that rulemaking proceedings might necessitate a different stan dard from the one proposed. Maj. Op. at 48. That, however, is precisely what OSHA has done. The record itself refutes the contention that the final Standard was a "logical outgrowth" of the rulemaking proceedings. OSHA admits that the record is virtually de void of evidence on the technological feasibility or health benefits of a level of 50 ug/m3 and contains nothing at all on the economic feasibility of such a level. As the dissent cogently argues, 7. These portents included OSHA's inquiry whether an expo sure level of 100 ug/m3 "incorporates an appropriate margin of safety" and OSHA's expression of concern about the significance of subclinical effects and the risks to unborn children of female workers. As the dissent cor rectly observes, OSHA could just as easily argue that these statements justified a standard of 10 ug/m3 or even complete elimination of lead from the workplace. Diss. Op. at 11. While statements such as the "safety margin" language arguably apprised parties that the final rule might be set at a level of 90 ug/m3 or 95 ug/m3, it could hardly be foreseen that "an appropriate margin of safety" would be translated into the material differ ence between 100 ug/m3 and 50 ug/m3. L!iC 33 If 6 "That no such evidence was offered by anyone during the extended hearings, especially considering the intensity of the participants' adversarial positions, constitutes the best support for concluding that the 50 ug/m3 level was not a 'logical outgrowth' of the Notice of the Rulemaking proposal of a '100 ug/m3 . . . level.'" Diss. Op. at 10. Adequate notice obviously would have generated a dramatical ly different record, both on the technological and economic feasibility of the Standard and on the other issues ad dressed by industry petitioners. The majority has effec- 8. The majority virtually recognizes as much when it ac knowledges the good faith claim of certain industry peti tioners that they offered no evidence of infeasibility because the inadequate notice led them to believe that the new Standard would pose no feasibility problem for their member industries. Maj. Op. at 55 n.49. Others, for the same reason, failed to provide evidence concern ing other issues, including the infeasibility of particu lar operations. When the majority then suggests that the absence of record evidence for these industries and operations is a result of a "strategically faulty re sponse" to OSHA's "obviously substantially]" different proposed standard, it encourages agencies to provide as little information as possible on their proposed actions, thereby shifting to the regulated industries the burden of negating the feasibility, not only of the agency's stated intentions, but also of all materially different proposals the agency may decide to adopt. Equally with out merit is the majority's suggestion that, since the industry petitioners claimed that 100 ug/m3 was infeasi ble, they would make the same arguments--without offering additional evidence--concerning 50 ug/m3. Maj. Op. at 55. Under this logic, OSHA could have adopted an airlead exposure limit of zero. However the issue is analyzed, one thing is beyond dispute: the affected parties have had no opportunity to present the "counter vailing evidence" that this Court has held must be con sidered in determining whether an agency's decision is supported by "substantial evidence 'on the record con sidered as a whole'". AFL-CIO v. Marshall, 617 F.2d 636, 649 n.44 (D.C. Cir. 1979"T LI4f331Q 7 I tively created a system of notice-by-ambush that violates the statute and has denied due process to the various indus tries in these proceedings.9 (b) Ex Parte Evidence. Ignoring the clear man date of decisions such as Home Box Office, Inc, v. FCC, 185 U.S. App. D.C. 142, 567 F.2d 9, cert denied, 434 U.S. 829 (1977); United States Lines, Inc, v. FMC, 189 U.S. App. D.C. 361, 584 F.2d 519 (1978); and National Small Shipments Traf fic Conference, Inc, v. ICC, 191 U.S. App. D.C. 214, 590 F.2d 345 (1978), the panel majority condoned OSHA's use of secret post-hearing reports (concededly the only evidence considered by OSHA on the feasibility of a PEL of 50 ug/m3 (Maj. Op. at 45)) by certain consultants who had previously testified as agency experts during the hearings. The major ity did so on the grounds that, 9. The majority relied repeatedly on the Supreme Court's decision in Vermont Yankee Nuclear Power Corp. v. NRDC, Inc., 435 U.S~ 519 ( 1978), in justifying the conclusions it reached on both procedural and substantive points. E.., Maj. Op. at 7, 15, 30, 35-37. The caveats imposed by that decision, however, have nothing to do with the case at bar. The Supreme Court warned in Vermont Yankee that it is "the discretion of the agencies and not that of the courts [which should] be exercised in determining when extra procedural devices should be employed." 435 U.S. at 546. (Emphasis in original.) The questions here are not the employment of "extra" procedural devices but rather the interpretation of the procedural and substan tive safeguards that are implicit in and required by the Act and the agency's own regulations. LI &G 33 2C 8 (a) the industry petitioners failed to show that the re ports, which they have never seen and which they were unable to secure under the Freedom of Information Act, contained new data,10 and (b) there is "no functional difference" between post hearing deliberations involving in-house staff and those involving outside consultants, even when those consultants are expert witnesses who had previously taken positions with respect to disputed critical facts concerning the proposed air-lead exposure limit of 100 ug/m3 and who obviously had a vested profes sional and economic interest in defending the accura cy of their studies and opinions. Maj. Op. at. 39, 43. As the dissent explained (Diss. Op. at 4-6), the fallacies inherent in such rationales are obvious. There can be no question about the prejudicial im pact of these ex_ parte reports. Both admittedly influenced OSHA's decisions. As OSHA acknowledged when opposing LIA's 10. The mere fact that the consultants were experts meant that their opinions, views and evaluations constituted new evidence, regardless of whether they did or did not rely upon materials outside the record. In any event, as the dissent correctly notes, "the secret reports were not cumulative of the record evidence . . . [and] .may have included extra-record evidence." Diss. Op. at 6 LI 4C 3? 2 1 9 FOIA request for the documents, "[T]he dispositive fact is that the memoranda unques tionably were used by OSHA in its 'on the record' rule making deliberations." OSHA Reply Br. at 4, Lead In dustries Association v. OSHA, 610 F.2d 70 (2d Cir. 1 97 9(Emphasis added.) See also Ma j . Op. at 45 ("the post-hearing contract with . . . [Burton] was OSHA's first attempt to obtain expert advice directly addressing the feasibility of the 50 ug/m3 standard"). The majority's decision is therefore flatly inconsistent with earlier decisions by the courts of appeals and with the Supreme Court's decision in Citizens to Preserve Overton Park, Inc, v. Volpe, 401 U.S. 402 (1971), which require that the entire record be available so that the court can perform the searching and careful review called for by the Administrative Procedure Act. 2. The panel majority incorrectly formulated and applied the substantial evidence test to OSHA's determination that the Standard is technologically feasible. An OSHA standard can be upheld only if "substan tial evidence" supports the agency's determination that the standard is technologically "feasible". 29 U.S.C. 655(b) (5), 655(f). See Ma j. Op. at 141-42. Here, OSHA admits that "virtually all of . . . [the] evidence" presented at the hearings "went to the feasibility of . . . 100 ug/m3," not the final PEL of 50 ug/m3. OSHA Stay Br. at 6; see 10 Li 3 2 ? Diss. Op. at 2, 9. In an effort to escape the impact of this admission and the dearth of record evidence, the majority adopts an interpretation of the ''substantial evidence'1 test and the word "feasible" that is flatly inconsistent with both the letter and the spirit of the Supreme Courts ruling in Industrial Union Department v. American Petroleum Insti tute, 100 S.Ct. 2844 (1980), and with prior decisions by this Court and other courts of appeals. Precisely because an OSHA standard can be upheld only if "substantial evidence" supports the Secretary's determination that the standard is technologically feasible, 29 U.S.C. 655(f); Maj. Op. at 141-42, a court must conduct a "rigorous . . . review" to ensure that unlimited adminis trative discretion is not immunized by undue judicial de ference. AFL-CIO v. Marshall, 617 F.2d 636, 651 (D.C. Cir. 1979). The panel majority's concept of the substantial evidence test removes this necessary check on agency action; indeed, the decision by the majority would make such a check impossible. A court, the majority posits, need only "find sub stantial evidence to justify [the] presumption" that there is a "reasonable possibility" that at some point in the future a "typical firm" will be technologically able to com ply with the Standard "in most of its operations". Maj. Op. L I 0 ? 3 ? t 11 at 154, 159. (Emphasis added.) Because of this legally un tenable premise, the majority found, not surprisingly, that the substantial evidence test was satisfied by evidence that "give[s] some credence to OSHA's prediction that the PEL might be met." Ma j . Op. at 177. (Emphasis added.) Indeed, with respect to the primary and secondary smelting indus tries generally, the majority upheld the Standard even though OSHA only "managed to cite some record evidence prom ising technological developments that might meet the PEL in the long range." I_d. at 206. (Emphasis added.)11 See Table I attached hereto (previously submitted to the panel in the consolidated industry briefs and at oral argument), the accuracy of which has never been challenged by OSHA or 11. The majority attempts to justify this reduction of OSHA's burden to a meaningless formality by noting the availability of temporary variance proceedings and en forcement proceedings in which a company could contend that subsequent events have proved that the Standard is infeasible. Maj. Op. at 161--63- But in the analogous context of a challenge to an EPA air pollution standard, this Court expressly rejected such an argument, holding that "the flexibility appropriate to enforcement will not render 'achievable' a standard which cannot be achieved on a regular basis . . . ." National Lime Ass'n v. EPA, 14 Environ. Rep. (BNA) 1 509, 151 7 n. 46 (D. C. Cir. May 19, 1980). Equally without merit is the majority's conclusion that an OSHA health standard is technologically feasible under the Act merely because it may be feasible "in most . ... operations". Maj. Op. at 159. Such an interpretation of OSHA's rulemaking authority would permit the agency to disregard totally the requirements of the Act with respect to precisely those hard-to-control operations that may create the health hazards which are the subject of the Act. i-lC?3?4 12 the union petitioners. Such an interpretation of the Court's role in reviewing an agency's determination is unjustifiable for at least three reasons. First, it conflicts with prior deci sions of this Court and of other circuit courts of appeals interpreting the technological feasibility requirement. These decisions have permitted OSHA or its sister agencies to ''force" an industry to upgrade its technology only when it has found, on the basis of substantial evidence, that (a) technology exists (not might exist) that is adaptable to the industry in question, (b) the technological improve ments that are required involve changes in existing "proc esses" or "devices", not the development entirely new and untested technologies for an entire industry, and (c) rapid past improvement indicates an ability to effect the changes in the very near future, not rebuilding all plants and factories over a five- to ten-year period (com pare 52973 -- 79 52961-82). See, .., ASG Industries, Inc, v. CPSC, 193 O.S. App. D.C. 169, 593 F.2d 1323, 1334, cert. denied, 444 U.S. 864 (1979); Society of Plastics Indus try, Inc, v. OSHA, 509 F.2d 1301 , 1309-10 (2d Cir. ) , cert. denied, 421 U.S. 992 ( 1975); American Iron A Steel Institute v. OSHA, 577 F.2d 825, 833-34 (3d Cir. 1978), cert, granted, 100 S.Ct. 3054, cert. dismissed, U.S. (1980); Mar- L IA C 3 2 ^ 13 shall v. West Point Pepperell, Inc., 588 F.2d 979 (5th Cir. 1979). Second, the interpretation is contrary to the Supreme Court's statement in Industrial Union Department v. American Petroleum Institute, 100 S.Ct. 2844, 2869 (1980), that the agency must meet the burden of producing sufficient evidence to show that "it is at least more likely than not" that the statutory standard was satisfied.^ The majority's formulation bears no relation to these requirements. Finally, the majority's interpretation expands OSHA's authority beyond the constraints imposed by Congress in its choice of statutory language, raising the spectre of unreviewable discretion and unconstitutional delegation of12 12. Even Mr. Justice Marshall, dissenting in Industrial Union Department v. American Petroleum Institute, 100 STCt~. at 2895-96, acknowledged that the "substantial evidence" test is "more stringent than the traditional 'arbitrary and capricious' standard," and that even the latter test "contemplates a searching 'inquiry into the facts' in order to determine 'whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.* Citizens to Preserve Overton Park v. Volpe, 401 U.S. 4o2, 416 (1971)." See National Lime Ass'n v. EPA, 14 Environ. Rep. (BNA) 1509, 151b, 1535 n.126 (D.C. Cir. May 19, 1980) (the "arbitrary and capricious" standard imposes a "rigorous standard" of judicial review involving a "hard look" at an agency's actions). Mr. Justice Marshall noted that careful performance of this task is especially important under the "more rigorous" substantial evidence test. This should be compared with the panel majority's description of the substan tial evidence test as merely imposing "rather generous constraints". Maj. Op. at 145. L 11 0 3 2 h 14 legislative authority. See the plurality's opinion in Industrial Union Dept, v. American Petroleum Institute, supra. 100 S.Ct. at 2866. The Act limits OSHA's power to the realm of technological feasibility; the majority's decision ex pands that power to the world of speculation where presump tion replaces evidentiary fact. 3. OSHA failed to demonstrate that the Stan dard is economically feasible or reason ably necessary; it also did not conduct the required cost-benefit analysis. The majority found that OSHA had demonstrated eco nomic feasibility despite the conceded absence of any evi dence with, respect to the economic feasibility of the 50 ug/m3 air-lead standard actually adopted.!3 Maj. Op. at 169-70; Diss. Op. at 9, 25. Citing the Supreme Court's de cision in Industrial Union Department v. American Petroleum Institute, he majority tiptoed around the evidentiary gap in OSHA's case by reading the "best available evidence" rule in Section 6(b)(5) of the Act, 29 U.S.C. 655(b)(5), to refer solely to the evidence, if any, that happens to be "available" in the record, whatever that evidence might be.13 13. OSHA, for example, concedes that it did "not undertake a formal analysis of cost of compliance" (54496/3)> did not prepare "cost estimates" for the standard (OSHA Br. at 222), and did not have sufficient data to derive a "meaningful quantification of cost" (52981/3). 15 L I 0 ? 3 2 7 See, e_.. , Maj. Op. at 147-48, 170 n.133. But none of the opinions in American Petroleum Institute remotely suggests that the "best available evidence" rule permits OSHA to re lieve itself of its burden to establish feasibility by gathering evidence on one proposed standard and then promul gating another standard for which it finds, not surprising ly, that the record contains no available evidence. See, Mr. Justice Powell's concurrence at 100 S.Ct. 2876 ("the statutory preference for the 'best available evidence* . . . implies that OSHA must use the best known techniques for . . . accurate estimation . . . when such techniques are available").14 OSHA made no attempt to present or elicit evidence on the costs of the 50 ug/m3 final Standard. Nor did it attempt to determine the costs of the MRP earnings protec tion requirement or the cumulative impact that would result from the new EPA National Ambient Quality Standard for Lead 14. The panel majority also relied on the "speculative na ture of the technology" that the industry must develop to attempt to meet the Standard as an excuse for OSHA's failure ,o estimate the costs of compliance. Maj. Op. at 170, 179. On this theory, the weaker the proof of technological feasibility, the less demanding is the burden of proof of economic feasibility. Carried to its logical conclusion, the majority's reasoning sug gests that if OSHA merely hints that someone someday may invent the technology to meet a proposed standard, the agency can then forego any attempt to demonstrate the economic feasibility of a standard. L I A03 32 p 16 (upheld by the same panel a few weeks before this case was decided). To hold that the "best available evidence" rule excuses such an abdication of responsibility is, as the dissent states, "patently irresponsible" and "ludicrous". Diss. Op. at 27. Such a holding is in direct conflict with this Court's admonition that a reviewing court must not allow "an agency's claim of ignorance [to] clothe it with unreviewable discretion." AFL-CIO v. Marshall, 617 F.2d 636, 651 (D.C. Cir. 1979). The majority decision also is in conflict with de cisions of the Courts of Appeals for the Fifth, Sixth and Seventh Circuits, that OSHA must "determine whether the benefits expected from a 'standard bear a reasonable rela tionship to the costs imposed by the standard." American Petroleum Institute v. OSHA, 581 F. 2d 493, 503 (5th Cir. 1978), aff'd on other grounds sub nom. Industrial Union De partment v. American Petroleum Institute, 100 S.Ct. 2844 (1980); RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979); Turner Co. v. Secretary of Labor, 561 F.2d 82 (7th Cir. 1977). Although the Supreme Court in American Petroleum Institute did not reach the issue whether OSHA must conduct a cost-benefit analysis, the plurality's state ment that "Congress intended, at a bare minimum, that the Secretary find a significant risk of harm and therefore a LI AO?32^ 17 probability of significant benefits," 100 S.Ct. at 2865, implies that the agency before promulgating a standard must evaluate not only costs but also health benefits. Diss. Op. at 34. In this case, OSHA was unable to evaluate the health benefits of the Standard and hence totally failed to establish that the new Standard was "reasonably necessary . . . to remedy a significant risk of material health im pairment," as required by the Supreme Court in American Petroleum Institute, supra, 100 S.Ct. at 2863.^5 Not only did the agency fail to generate and analyze data on the cost side of the equation, but it also conceded that, ". . . the available data does not allow meaningful quantitative estimation of the degree of prevention 15. The majority candidly admits that for some industries there is little or no record evidence that workers are actually exposed to lead, and acknowledges that expo sure in other industries is intermittent. Maj. Op. at 215, 225-26, 227. If the Supreme Court's decision in American Petroleum Institute is to have any meaning, ^significant risk" cannot exist when exposure is infre quent, minimal or non-existent. Certainly no finding of "substantial risk" can be made for the many lead industries which were "never even mentioned in the Preamble" (Maj. Op. at 224 n.162) but which are none theless subjected to most aspects of the Standard. To permit the Standard to apply to these industries during the remand is inconsistent with Section 6(e) of the Act, 29 U.S.C. 655(e) (requiring OSKA to explain the reasons for its standards) and with the rule requiring inadequately explained agency action to be "vacated and . . . remanded . . . for further consideration." Camp v. Pitts, 411 U.S. 138 (1973) (Emphasis added.) L U0??3b 18 of the different forms of health damage likely to be achieved by lowering worker air exposures and blood lead levels by various amounts for various periods of time." (54427/1) Translated into plain English, OSHA was saying, "We are un able to estimate the health benefits, if any, that would be achieved by reducing the air-lead exposure limit to the level set in the new Standard." Indeed, even the majority concedes that there is no evidence of "the actual incidence of significant health effects at the old and new PEL'S." Maj. Op. at 110. OSHA's statutory obligation to conduct cost-bene fit analyses and to determine that a standard is "reasonably necessary" to remedy, and will remedy, "significant risk[s] of material health impairment" is simply a recognition that capital resources are finite and that, to be used most ef fectively, finite resources must be allocated in a rational way. See RMI Co. v. Secretary of Labor, supra, 594 F.2d at 573 ("there must be a reasonable assurance that there will be an appreciable and corresponding improvement in working conditions"). That obligation is inherent in OSHA's basic charter to protect workers' health, since every dollar wasted on infeasible engineering controls is a dollar that is unavailable to accomplish actual benefits through more efficient alternatives. See American Petroleum Institute, L I 6.0 r ' 19 supra, TOO S.Ct. at 2878 & n.7 (Powell, J. , concurring) The necessity for these analyses becomes all the more acute when, as here, OSHA would force the major lead industries to rebuild all their plants to accommodate new, speculative technologies (e.., 52978-79, 52981-82, 54480, 52979/3)-- technologies which might well fail and which, even if suc cessful, would still require heavy reliance upon respirators to protect workers1 health. Such analyses are also particu larly necessary here in view of the fact that OSHA's new Standard is designed to protect workers not from cancer or even less serious disease or illness but from biological "effects" which occur in the "absence of illness" (52964/1). See Maj. Op. at 115-16, 128. 4. The majority ignored the language and legislative history of the Act, and mis interpreted the Supreme Court's ruling in Whirlpool, in concluding that OSHA has authority to require employers to provide full earnings protection and job security to all workers in the lead industries. OSHA is not vested with statutory authority to adopt the medical removal/earnings protection program re quired by the new lead regulation. As the dissent persua sively explains (Diss. Op. at 13-20), th lajority's reason ing on this issue flies in the face of the clear statutory language, the legislative history of the Act, and the L IAC23? ? 20 Supreme Court's recent interpretation of such language and history in Whirlpool Corp. v. Marshall, 445 O.S. 1 (1980). (a) General Authority under the Act. OSHA's au thority under the Act to adopt regulations to deal with "working conditions" and provide safe or healthful "places of employment" does not give OSHA authority to regulate any aspect of employment that OSHA happens to believe may have an incidental impact on worker health or safety. There is a fundamental difference between ordering an employer to provide biological monitoring and medical surveillance programs for his employees, on the one hand, and requiring that he make payments designed (as OSHA concedes (54467/3)) to induce recalcitrant employees to participate in those programs, on the other. Such payments--somewhat akin to bribing children to be good--are hardly the kind of costs contemplated by Congress when it imposed on employers the "costs ... in meeting the standards of health and safety to be established" under the Act. (b) The Legislative History of the Act. Nothing in the legislative history of the Act supports a congres sional intention to grant OSHA the power to require these payments, and, indeed, all the legislative history is to the contrary. Only one year before Congress enacted the Act, it adopted the Federal Coal Mine Health and Safety Act of 1969, LI AO 3 3? 3 '1 which explicitly required job removal with earnings protec tion for miners with pneumoconiosis. 30 U.S.C. 843(b) (2)-(3). Congress not only failed to include a similar pro vision in the 1970 Act, but in fact explicitly rejected such a provision--the "Daniels amendment"--in one of the bills considered at the.time of its adoption. The Daniels amendment would have required employ ers to pay their workers their regular salary when the workers reasonably absented themselves from a workplace that HEW had determined contained improperly high levels of toxic substances. See Diss. Op. at 16 n.6. This controversial "strike with pay" provision was withdrawn, not, as the majority suggests, because it left to each individual em ployee the determination of whether his work site was health-threatening (HEW, not the empi ;-e, made that deci sion), but because it compelled employers to pay employees full earnings for no work. This crucial feature was empha sized by the Supreme Court in Whirlpool Corp. v. Marshall, 445 U.S. 1, & n.29 (1980) ("Congress' concern necessarily was with the provision's compensation requirement"). The Court there distinguished another regulation on the grounds that it imposed no such pay obligation on the employer when his employee reasonably chose to absent himself from the job. The majority's attempt (Maj. Op. at 73 n.69) to read LI40???4 22 the decision as premised on anything other than the absence of a provision giving employees the right to their usual compensation is incorrect. The majority presumably did not know that even the Secretary of Labor, in his brief filed with the Supreme Court in Whirlpool in December 1979 (after the briefs in the lead case had been filed with this Court), conceded that Congress' opposition to the Daniels amendment "was premised solely on the fact that employees would be paid while not working--a novel proposition in federal labor legislation"; the Secretary of Labor explained that the regulation con sidered in Whirlpool was not inconsistent with congressional opposition to the Daniels amendment because the regulation at issue in Whirlpool "does not require an employer to pay an employee who d.is not work" (p. 19). Thus, the Supreme Court reached its decision after the Secretary of Labor had unequivocally told the Court that Congress did not want to enact a statute that adopted "the novel proposition in federal legislation" that "an employee was to be paid while not working." The MRP provision in the lead Standard con stitutes just such a "novel proposition". As recently as July 1980 the Secretary of Labor emphasized (at page 9 of his brief opposing the petition for certiorari in the cotton dust case) that the congressional LIAO???*' 23 concern about the "regulation discussed in Whirlpool cen tered on avoiding endless disputes over compensating em ployees for not working." The Secretary then went on to assert that, "The provision at issue h. e [in the cotton dust case] stands in sharp contrast [to the Whirlpool regulation]. Rather than enabling an employee to refuse to do any work and still be paid, the [cotton dust] medicaltransfer and income-protection provision only requires a transfer to do other work, and then only if such a position is availableT" (Emphasis added.) Yet the MRP provision in the lead Standard, as distinguished from the MRP provision in the cotton dust regulation, does require paying an employee for not working; it is not limit ed to "transfers] to do other work ... if such a position is available," Also, there is no doubt that the requirement in the lead Standard will generate endless disputes about compensating employees for not working, since under the lead Standard (a) an employee can initiate procedures for his own removal by the company physician (see, > 54462/2-3 con cerning MRP for workers "desiring to parent a child in the near future"), and (b) if an employee is not satisfied by the decision of the company's physician, he can go to his own physician and then insist, all at the company's expense, that a third physician be retained to resolve the contro versy (see 52997-98). L I !233l 24 (c) The Language of the Act. Congress stated in the Act itself that "nothing" in the Act "shall be con strued to supersede or in any manner affect any workmen's compensation law . . . 29 U.S.C. 653(b)(4) (1976). As even the majority concedes (Maj. Op. at 79), the MRP earn ings protection requirement as. a "practical" matter affects and supersedes workers' compensation programs for workers who are ill and who, but for MRP, would be entitled to receive workmen's compensation. The majority suggests, however, that the language of the Act was concerned not with practical impacts on worker's compensation laws, but solely with legal impacts. Yet it is virtually undisputed--as OSHA's own expert witness testified--that the MRP/earnings protection program would completely replace coverage under existing worker's compensation laws for lead industry workers. The majority's interpretation thus distorts the language of Congress and its careful deference to state laws, laws which invariably recognize (as Congress did when rejecting the Daniels amendment) the dangers inherent in paying an employee 100 percent of his salary for not work ing . Conclusion For the foregoing reasons, this Petition for Re hearing and Suggestion for Rehearing En Banc should be L IA033?7 25 granted, and the cases should be remanded to OSHA for new hearings, after appropriate notice of rulemaking, conducted in accordance with the procedural and substantive require ments of law. Dated: New York, New York September 25, 1980 Respectfully submitted, ORIGINAL SIGNED BY STANDISH F. MEDINA JR. Standish F. Medina, Jr. Debevoise, Plimpton, Lyons 4 Gates Liaison counsel for the industry petitioners and intervenors COVINGTON 4 BURLING 888 Sixteenth St., N.W. Washington, D.C. 20006 Attorneys for Intervenor The Shipbuilders Council of America (Docket No. 79-1054) FULBRIGHT 4 JAWORSKI 1150 Connecticut Avenue, N.W. Washington, D.C. 20006 (202) 452-6800 Attorneys for Petitioners Nat'l Paint 4 Coatings Assoc., Inc., et_ al. DEBEVOISE, PLIMPTON, LYONS & (Docket No. 79-10^2) GATES 299 Park Avenue New York, New York 10017 (212) 752-6400 Attorneys for Petitioner Lead Industries Association, Inc. (Docket No. 79-1078) GIBSON, DUNN 4 CRUTCHER 1776 G Street, N.W. Washington, D.C. 20006 (202) 785-8900 Attorneys for Petitioner ASARC0 Incorporated (Docket No. 70-1080) HUGH M. FINNERAN, ESQ. One Gateway Center Pittsburgh, Pennsylvania (412) 434-3131 Attorney for Petitioner PPG Industries, Inc. (Docket No. 79-1083) BRUCE HAMILL, ESQ. 1500 Rhode Island Avenue, N.W. Washington, D.C. 20005 (202) 462-6272 Attorney for Petitioners National Paint 4 Coatings Assoc., Inc., et al. (Docket No. 79-10^2) 26 L I A 0 3 3 ? c WILLIAM V. KEARNBURG, ESQ. P.O. Box 1000 Carrollton, Georgia 23212 (404) 832-5375 Attorney for Petitioner Scuthwire Company (Docket No. 79-1 081 ) HUNT0N 4 WILLIAMS P.O. Box 1535 Richmond, Virginia 23212 (804) 788-8200 Attorneys for Petitioner Ethyl Corporation (Docket No. 79-1145) ROBERT D. MORAN, ESQ. Suite 1111 1828 L Street, N.W. Washington, D.C. 20036 (202) 857-0057 Attorneys for Intervenor Cast Metals Federation (Docket No. 79-1048) PEPPER, HAMILTON 4 SCHEETZ 1776 F Street, N.W. Washington, D.C. 20006 (202) 626-7260 Attorneys for Petitioners Ford Motor Company (Docket No. 79-1106), General Motors Corporation (Docket No. 79-1107), and Chrysler Corporation (Docket No. 79-1108) PRATHER, SEEGER, DOOLITTLE 4 FARMER 1101 Sixteenth Street, N.W. Washington, D.C. 20036 (202) 296-0500 Attorneys for Intervenor The Bunker Hill Company (Docket No. 79-1078) REED, SMITH, SHAW 4 McCLAY Suite 900 1150 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 457-6162 Attorneys for Petitioners American Iron and Steel Institute, et al. (Docket No. 79-105477 3t. Joe Minerals Corp. (Docket No. 79-1121), and Corning Glass Works (Docket No. 79-1120) SIDLEY 4 AUSTIN 1730 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 624-9014 Attorneys for Petitioner Battery Council International (Docket No. 79-1079) SURREY 4 MORSE 1156 15th Street, N.W. Washington, D.C. 20005 (202) 331-4000 Attorney for Petitioners South Central Bell Telephone Co., et al. (Docket No. 79-1057) TAYLOR, PORTER, BROOKS 4 PHILLIPS P.O. Box 2471 Baton Rouge, Louisiana 70821 (504) 387-3221 Attorneys for Intervenor Schuylkill Metals Corp. (Docket No. 79-1078) WILLIAMS 4 CONNOLLY 1000 Hill Building Washington, D.C. 20006 (202) 331-5000 Attorneys for Intervenor Dixie Metals Company (Docket No. 79-1078) L 27 Pvn.ir% ftrncus Cunc*ntrat,1^i Handling .ind SMmge Sintering 8Ut Furnace Dru**mg K#l i necy Crane Equipment s-undjrv B-ifi-ry SatfhouM* SUtm*aix*' Bfoamg S rag Handling Blet Kurnuc# Kf\Krrra(ur> Kui tu* Njg Huimiuig H#*f:n*r`y Op**f;Ul<JIUi C I'iii:^ and e.inriJllllg Bughl>US**> Mamlniam** Oxide M.inutar'unng ' >xirt# K^*!V!n Piv# Mixing ?.i*r.ng Plate Handling Plate 3rKing Plate 'tut King Noulcrruu* r-iuMr P.<nir:i: Mariun^ 'niynurs Auto'iioour M.u.utj* trs Burning A*s#mnlv Reclaiming Molding M#tung pouring 1 inndmg Operations 3egnouse AH Op^r#tu*is uraa-nurumg Sino bitting Widmg pjiuung Wilder On ruling *pr:iy Pnntmg Summary of Erwienr# Evidence Cited By OSH A In Federal Refiner To Show That A PEL Of V) ugrm:i Is Technologically Feasible Cjpian and (mmuot Non# None None None CupUn None None First. Bergaue Bergaoe. First. CapUn. Bergsue None What T%# Evidence Cited By OSHA Actually Say* About The Feasibility Of 50 mpnvi Nothing Some references to 10U ug/nkJ only iCapian Ex. 19*i. at 4. 7 and 10) Nothing Some testimony that 100 ugr3 might he reached with `enough money and good Iw.-X." (544*1X4) Nothing. Nothing. Littie hope of achieving even IUU ugnnJ. iCtptan 5tiy*i Nothing. Nothing. Testimony denis only with 100 ug/tnd (Caplac 57:12) Nothing. Nothing. Admits respirator* will be required Nutning Almits respirators anil be required. Nothing Admits respirators will be required. Nothing. Record Evidenr# Cited In Of*HA Brief To Show Thai A PEL Of .50 og'm-l Is Technologically Feasible in Spwifr Op#rit#in* Saae None Noat. None None Now. None. None None None. None None N**oe None DBA. Capiun Nothing. Nothing. Nothing None. None None Brntxie. Gudsey None. iiWL Health I'Wv*'# turty. Capian. TSomae. Mirer UAW. Cplan. None Th**n.t# C.ipian Non# Sapping* on Ceipiaa. Thomas. Thomas. CapUft None. None. None Nothing. Nothing. Admits respirators will he required. Nothing, except conrlusnry nutement* hy CAW representative that equipment muid he designed m the future. Nothing. Nothing. Nothing. *ncept Thomas theij* showing >v< {lerrept >] sample* m piunt* in excess nf 50 ug/m-i. Nothing. Testimony that eapiwures were 50 tn 100 mrrograme on the low end. to H00 to 7(X) mKTograaa on the high ' <5977) N*xhing. Admits compliance may have to `await i&ouvatwoe to both technology and iaivuuvi work practices* i.544#?/21 Nothing- Nothing. Nothing. Nothing. None None None None None None None None. None. None. None None. None Nooe. None None None. First NrtH* None. N*ww. None NtrthiOg. Nothing. Nothing. Admits respirators will he required. Nothing Admits respirators will he required Nothing. Nothing. Admits respirators will be required Nothing. Nothing. Nothing. None None None. None None None. None None None None Notnmg. Admit# respirators wiii he required. Nothing. Admit# respirators wiU t* required. None Table I L;i N 3710.02 Certificate of Service STATS OF NEW YORK ) : ss. : COUNTY OF NEW YORK ) STANDISH F. MEDINA, JR., a member of the Bars of the State of New York and this Court, and a member of the firm of Debevoise, Plimpton, Lyons 4 Gates, attorneys for Lead Industries Association, Inc., hereby affirms under pen alty of perjury that he has caused copies of the within JOINT PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC to be served on or before this date by causing true copies thereof, securely enclosed in postage-paid envelopes, to be sent by first class mail to the persons whose names and addresses are set forth in the listing attached hereto. Dated: New York, New York September 25, 1980 ORIGINAL SIGNED BY STANDISH F. MEDINA JR. Standish F. Medina, JrT L IA0?3a 1 N 3710.03 List of Persons Served Carin A. Clauss, Esq. Office of the Solicitor U.S. Department of Labor Room S4004 200 Constitution Avenue, N.W. Washington, D.C. 20210 George H. Cohen, Esq. Bredhoff, Gottesman, Cohen & Weinberg 100 Connecticut Avenue,. N.W. Washington, D.C. 20036 Claude D. Montgomery, Esq. Assistant General Counsel United Auto Workers International 8000 East Jefferson Avenue Detroit, Michigan 48214 John Carey Simms, Esq. Suite 700 2000 P Street, N.W. Washington, D.C. 20036 Anthony J. Obadal, Esq. Zimmerman & Obadal 1101 15th Street, N.W. Washington, D.C. 20005 Edward L. Merrigan, Esq. 6000 Connecticut Avenue, N.W. Washington, D.C. 20015 Edward F. Schiff, Esq. Akin, Gump, Hauer & Feld 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 . Seagal V. Wheatley, Esq. Oppenheimer, Rosenberg, Kelleher & Wheatley San Antonio Bank & Trust Co. Suite 620 San Antonio, Texas 78205