Document R2aJQym61KODRJEzeywY25KX

JOSEPH C KELLER jCAOmCh hCCkman WILLIAM H BORGhCSANI JR MALCOLM O M.CAftTHUA WAYNC V BLACK TCMACNCC O JONES MARTIN W CRCOVlC' JOHN S ELORCO CAROLE C MARAIS MICHAEL F MORROMC MARK FOX EVENS JOHN B RICHARDS john a ouaccK RCTCR L < la CRUZ Christine h Gill mclvin s OROZCn ShirlCv s cujimo^O LAWRENCE R halRRIN Ralph a Simmons RCTCR a SUSSEX C OOUGlaS jarrctt NOT ADMITTED IN O C ShEHA a MILLAR PATRICK J HURD GEORGE G MiSKO frCOER'CK j Day JR SmEila j LANDERS maRCia k COwan S CRAIG TAUTreST MARK A SlCVERS MICHAEL R SENNET THOMAS R MOUNTCER G FRANKLIN KOONTZ CATWCRINC N ROCMCR RlCHARO A. JAFFC* KRIS ANNC MONTCITh ELLIOT SCLILOS SHANNON L DENMAN MARK L ITZKOFF MARC SERCJKA JUSTIN P MCCARTHY KENNETH A OLSEN JEFFREY S LANG* ARCHIE L HARRIS. JR * LAW OFFICES Keller and Heckman lt&O 17TM STREET, K. W. SUITE lOOO WASHINGTON. D C. 20030 (202) 50-5000 October 24, 1990 To: SPI Vinyl Institute SCiCNTinc staff OANlEu. S DIALER p~ 0 CharlCS v 6RCOEX x*. O RO0CRT A MATHEWS P- D JOHN P MODOERMAN p- O hollt hutmirc folct JUSTIN c POWELL. P o JANETTE HOUR p- O TELECOMMUNICATIONS ENGINEER CharlCS f turned telex X 9SSSi TELECOPIER (202) 296-T682 CABLE ADORESS kEiman swriter direct dial number (202) 956-5641 Legal Committee Health, Safety and Environmental Committee EDC OSHA Working Group Re: SPI v. OSHA (Case No. 89-7249) AFL-CIO v. OSHA (Case No. 89-7185) Ladies and Gentlemen: Following up on our previous correspondence in this matter, we wanted to provide you with a synopsis of the arguments raised by the American Federation of Labor - Congress of Industrial Organizations (AFL-CIO) in its brief. The AFLCIO' s 94 page brief argues generally for lower permissible exposure limits (PELs) on the substances in the air contaminants rulemaking. We have summarized the federation's brief below and have attached a copy of its table of contents for your review. The union charges that the Occupational Safety and Health Administration (OSHA) violated Section 6(b)(5) of the Occupational Safety and Health Act, by failing to establish the most protective rule that industry is capable of achieving. In addition, the AFL-CIO urges the court to direct OSHA to establish PELs for those substances for which the National Institute of Occupational Safety and Health (NIOSH) has documented a high risk of health effects, and for which recommended exposure limits (RELs) have been adopted. Finally, the union argues that OSHA's decision to allow employers to use respirators to meet the air contaminant standards for four more years is arbitrary and capricious and, therefore, cannot stand. CTL029676 . SPI Vinyl Institute October 24, 1990 Page 2 Keller and Heckman Obviously, we do not support the routine adoption of NIOSH RELs as OSHA PELs. However, because the AFL-CIO did not specifically challenge OSHA's PEL for ethylene dichloride (EDC), we do not feel that it will be necessary for the Vinyl Institute to respond to this brief. The general issues raised by the union will be adequately addressed by OSHA or are not germane to the Institute's interests. We are also aware of responses being prepared by other industry groups. Further, the federation's attack upon the revised air contaminant standard does raise similar concerns to those voiced in SPI's brief viz.. that the agency did not actually review the references which it relied upon in establishing the revised PELs. The AFL-CIO's primary attack on OSHA's revised Air Contaminant Standard is aimed at OSHA's decision to adopt PELs for the revised Standard based upon the threshold limit values (TLVs) developed by the American Conference of Governmental Industrial Hygienists (ACGIH). AFL-CIO argues that this action is "utterly irrational -- and totally inconsistent with OSHA's statutory mandate" for several reasons viz: (1) on a number of occasions OSHA has found that exposure limits should be set substantially below ACGIH's TLVs; (2) ACGIH concedes that its TLVs are not developed for use as legal standards, but are merely guidelines or recommendations; (3) ACGIH does not apply the Section 6(b)(5) standard that "no employee will suffer material impairment" in setting TLVs; (4) the ACGIH's TLV Committee is improperly biased towards, industry and some TLVs have been developed in a "suspect manner"; and (5) the TLVs are "hopelessly outdated" having been based on studies or publications from the 1950s, 60s and 70s. AFL-CIO repeatedly charges that the revised rule must be overturned because OSHA has failed to live up to its statutory obligation to "set the lowest feasible PEL." In support of these claims, the federation points to numerous studies which found evidence of adverse health effects at exposure levels below those adopted by OSHA. AFL-CIO's brief is weak, however, in that the federation does not attempt to explain why the referenced studies are any more credible than the supporting data used by OSHA. Instead, it seems to assume that OSHA should set PELs at the lowest level at which adverse health effects have been observed in any study without regard to the technologic and economic feasibility of attaining that level of protection in the work place. In its final argument, AFL-CIO challenges OSHA's decision to allow industry to continue to use respirators to CTL029677 SPI Vinyl Institute October 24, 1990 Page 3 Keller and Heckman meet the Air Contaminant Standards for an additional four years. The federation claims that it was "arbitrary and contrary to the act" to allow a four-year lag time. AFL-CIO's principal argument in support of a shorter lag time is that the agency has stated that its "feasibility analysis was based on what industry is already achieving or what could be achieved with standard 'off-the-shelf' technology." 54 Fed. Reg. 2366. AFL-CIO argues that there is "no reason why employers should need four years to implement standard 'off-the-shelftechnology'. The federation, therefore, urges that OSHA be directed to shorten this lag-time to one or two years, and that those "unusual situations in which a feasibility problem would actually be presented" be handled under the act's temporary variance provision. 29 U.S.C. 655(b)(6)(A). AFL-CIO argues that, if necessary, OSHA may grant variances to specific industries which need an extended period of time in which to comply, and that permanent variances may be given in individual instances where it is shown that it is not feasible to achieve the exposure limits through the use of engineering controls. *** We welcome any comments you may have on the AFL-CIO's position. If anyone would like to receive a copy of the federation's brief, we will be happy to provide you with one. Enclosure cc: Larry Thomas Robert W. Sherman Hugh Patrick Toner Meredith Scheck / /U Peter "L. de la Cruz I I * 89-7185 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 89-7185 AMERICAN FEDERATION OF LABOR and CONGRESS OF INDUSTRIAL ORGANIZATIONS, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. Department of Labor, Respondent. On Petition for Review of a Final Rule of the Occupational Safety and Health Administration BRIEF OF PETITIONER AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS GEORGE H. COHEN JEREMIAH A. COLLINS JOHN ROTHCHILD JOHN M. WEST Bredhoff & Kaiser 1000 Connecticut Avenue, Suite 1300 Washington, D.C. 20036 202/833-9340 N.W. LAURENCE GOLD 815 16th Street, N.W. Washington, D.C. 20006 Attorneys for American Federation of Labor and Congress of Industrial Organizations CTL029679 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS.......................................................... i STATEMENT REGARDING ORAL ARGUMENT............................................................ iii TABLE OF CITATIONS....................................................................................................... vi STATEMENT OF JURISDICTION................................................................................... 1 STATEMENT OF THE ISSUES......................................................................................... 1 STATEMENT OF THE CASE............................................................................................... 3 I. II. III. Course of Proceedings.................................................................... Statement of Facts............................................................................. Standard of Review............................................................................. 3 3 10 SUMMARY OF THE ARGUMENT......................................................................................... 11 ARGUMENT.................................................................................................................................... 14 I. OSHA ACTED ARBITRARILY AND IN DEROGATION OF ITS STATUTORY MANDATE BY REFUSING TO CONSIDER ADOPTING OR REVISING EXPOSURE LIMITS FOR NUMEROUS TOXIC SUBSTANCES AS TO WHICH AN URGENT NEED FOR REGULATION HAD BEEN DOCUMENTED........................................................................ 14 II. FOR THE SUBSTANCES IT WAS WILLING TO CONSIDER, OSHA FAILED TO PROMULGATE THE MOST PROTECTIVE FEASIBLE EXPOSURE LIMITS, AS REQUIRED BY SECTION 6(b)(5) OF THE ACT........................................................................ 28 A. The Mandate of Section 6(b)(5)................................. 29 B. OSHA's Failure to Comply With the Statutory Mandate................................................................... 31 C. Specific Examples of OSHA's Failure to Set Adequate Exposure Limits................................... 37 1. Substances For Which OSHA Does Not Purport to Have Set the Lowest Feasible Exposure Limit............... 38 a. Substances as to Which OSHA Admits that the PEL is Too High to Eliminate Significant Risk........................................................................... 38 -IV- CTL029680 TABLE OF CONTENTS (continued) (1) Carbon tetrachloride............ (2) Vinyl bromide................................ (3) Toluene-2,4-diisocyanate (TDI).................................................... b. Substances as to Which OSHA Failed to Determine Whether the PELs Eliminate Significant Health Risks, and the Record Shows that They Do Not...................... (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) Methyl bromide.......................... Methyl chloride....................... Chloroform...................................... Sulfur dioxide.......................... Trichloroethylene.................. n-Butyl glycidyl ether.. Oil mist........................................... Crystalline silica.................. Gasoline.............................................. Asphalt fumes, fibrous glass dust, mineral wool fiber................................... 2. Substances for Which OSHA Suggests That a Lower Exposure Limit Might Not Be Feasible.......................................................... (1) Perchloroethylene.................. (2) Wood dust......................................... (3) Grain dust...................................... III. OSHA'S DECISION TO ALLOW FOUR YEARS OF RESPIRATOR USE BEFORE ENGINEERING CONTROLS MUST BE IMPLEMENTED IS ARBITRARY AND CONTRARY TO THE ACT........................................................................ IV. OSHA ACTED IN DIRECT VIOLATION OF SECTION 6(b)(7) BY REFUSING TO ADOPT PROVISIONS FOR EXPOSURE MONITORING AND MEDICAL SURVEILLANCE.......................................................................................... CONCLUSION................................................................................................................................ Page 38 40 42 43 43 45 47 49 51 54 55 57 59 62 64 64 69 75 81 86 92 -v- CTL029681