Document dYVypjVMbOpgjvgbqaXQdyp7B

VRD IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA'CIRCUIT OIL* CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION; Petitioners; v, PETER J. BRENNAN, SECRETARY; UNITED STATES DEPARTMENT OF LABOR, and JOHN H. STENDER, ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, Respondents. No. 74-2071 RESPONSE TO MOTION TO DISMISS PETITION FOR REVIEW The Secretary of Labor files this response to Firestone Plastic's motion to dismiss this petition for review. as notea in xenneco (jnemicai's January 2, 19713* motion to transfer, this petition for review involves a challenge to the vinyl chloride standard. Earlier petitions for review of that same standard were filed in the Second Circuit, the certified record has been filed there, and the case has been argued and is awaiting decision. Consequently, this petition for review should be transferred to the Second Circuit pursuant to 28 U.S.C. 2112(a), and that Court should rule upon Fire stone's motion to dismiss. Respectfully submitted. t <s; S5 STEPHEN F. EILPLR1N Attorney, Department of Justice, Civil Division, Appellate Section, Washington, D. C. 20530. PHONE: 202-739-3423. IN THE UNITED STA' 3 COURT 0? APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, Petitioners, v. PETER J. BRENNAN, SECRETARY, UNITED STATES DEPARTMENT OF LAEOR, and JOHN H. STENDER, ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, Respondents. < | ' No. 7^-2071 CERTIFICATE OF SERVICE I hereby certify that on this 20th day of January, 1975* I caused the foregoing Response to Motion to Dismiss Petition for Review to be served upon opposing counsel by mailing* postage prepaid, a copy to: Allan J. Topol, Esquire Covington and Eurling 888 Sixteenth Street, N. Washington, D. C. 20006 W. Jerry D. Anker, Esquire Lichtman, Abeles, Anker & Nagle, 1730 M Street, N. W. Washington, r. C. 20036 P.C. George H. Cohen, Esquire Bredhoff, Cushman, Gottesman Sc 1000 Connecticut Avenue, N. W. Washington, D. C. 2003 Cohen Jerome H. Heckman, Esquire Keller and Heckman 1150 Seventeenth Street, N. Washington, D. C. 20036 W. John J. Cassidy, Jr., Esquire Vedder. Price, Kaufman Sc Kammhclz 39 South LaSalle Street Chicago, Illinois 60603 2 J. Albert Uoll, Esquire Woll, Mayer & Gold 815 Fifteenth Street, H. W. Washington, D, C. 20005 Donald L. Morgan, Esquire Cleary, Gottlieb, Steen t: Hamilton 1250 Connecticut Avenue, N. W, Washington, D. c. 20036 Ms, Donna Roberts Legal Department Dow Chemical 2030 Dow Center Midland, Michigan 48640 Lawrence t. Lenihan, Esquire Arthur, Dry & Kalish 1230 Avenue of the Americas New York, New York 10020 John T, Ronan, III, Esquire Stauffer Chemical Company Law Department Westport, Connecticut 06880 Patrick F. McCartan, Esquire Jones, Day, Cockley & Reavis 1750 Union Commerce Building Cleveland, Ohio 44115 George Rowe, Jr., Esquire Fulton, Walter & Buncombe 30 Rockefeller Plaza New York, New York 10020 Marshall Lee Miller, Esquire Reavis, Pogue, Neal & Rose 1100 Connecticut Avenue, N. W. Washington, D. C. 20036 Dale Martin, Esquire Goodyear Tire Sc Rubber 1144 E. Market Street Akror, Ohio 44316 Co. Harold The B. WHB 6, Akron, J. Fast, Esquire F. Goodrich Company 500 South Main Street Ohio 44318 Attorney QU <53 <<5533 ro A FOR THE DISTRICT Of COLUMBIA CIRCUIT No. 74-2071 September Term, 19 74 Oil, Chemical and Atomic Workers International Union, Petitioner e? 5 3 es3 <S3 O' c-i <Si v. Peter J. Brennan, Secretary, United States Department of Labor and John H. Stenaer, Asst, Secretary of Labor for Occupational Safety and Health, Respondent ORDER On consideration of the motions of Tenneco Chemicals, Inc. and Air Products and Chemicals Inc. and The Society of the Plastics Industry, Inc. for leave to intervene herein, it is ORDERED' that the aforesaid motions are granted and Tenneco Chemicals, Inc. and Air Products and Chemicals I'nc, and The Society of the Plastics Industry, Inc. are granted leave to intervene in the above case. Counsel for the aforesaid intervenors are encouraged to file joint briefs wherever practicable and may participate in oral argument only to the extent allowable under Rule 12 of the General Rules of this Court. FOR THE COURT: HUGH E. KLINE, Clerk Deputy Clerk V * VRu 00620s6577 74-220C 74-2234 d 12 74-24C6 74-2245 74-2491 74-2450 74-2449 74-2535 74-2G09 UNITED STATES COURT OK Al'RKAUS Second Circuit At a Stated Term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Court House, in the City of.New York, on the thirteenth day of December > one thousand nine hundred and seventy-four. Union Carbide Corporation, V Petitioner, United 31ates Department of Labor, and Peter J. Drennan, Secretary, United States Department of Labor, and John I-I. Stender, Assistant Secretary of Labor for Occupational Safety and Health, Respondents* and the consolidated petitions for review upon consideration of It is hereby ordered that/he motion made herein by counsel for the petitioners: Firestone Plastics Company; Tenrtoco Chemicals, Air Procucts C Chemical and Hooker Chemicals Plsstigg _______ "Tae Society of the Plastics Industry; Union Carbide Corporation uppelbm.::: ^appellee; sjiotitiojita;:/ respondent:: dated December 2, December 3 and by:JK(tice;Djf:mcxioji:dxted: December 4, 1974 for a stay pending decision of t! petition^for review and for other and further relief, that the motion, for a stay pending decision of the petitions for review be aud it hereby is granted. dcaH&d.t- It i.c further ordered that said airy be and it hereby is granted as to all petitions for review as consolidated herein. VkD 0002006581 UNITED STATES COURT OF APPEALS . FOR THE SECOND CIRCUIT TENNECO CHEMICALS, INC., ) and AIR PRODUCTS AND CHEMICALS, INC.,; ' ) ) ) and ) ) HOOKER CHEMICALS & PLASTICS CORP., ) Petitioners, ) ) v. ) Nos. 74-2450,. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, ET AL,, ) 74-2449 and > 74-2286 ) ) Respondents, ) FIRESTONE PLASTICS COMPANY, a Division Of THE FIRESTONE TIRE & RUBBER COMPANY, ) ) > and ) INDUSTRIAL UNION DEPARTMENT, AFL-CIO, ) ) and ) AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANISATIONS, Intervenors in ) ) ) ) No. 74-2286. ) ) RESPONSE TO THE SECRETARY'S MOTION FOR CLARIFICATION OF STAY ORDER In his motion for clarification, the Secretary asks for clarification as to two points, the first being whether the emergency temporary standard remains in effect during the period of the stay, and the second whether in the event of a decision in favor of the Secretary any lead time would be provided to petitioners to comply with the terms of the permanent standard. v Both of these issues were specifically dealt with in the stay motion filed on behalf of these petitioners That motion stated: "For the foregoing reasons, petitioners respectfully request that the Court enter an order staying the provisions of the permanent standard, and leaving the terms of the emer gency temporary standard in effect, until such time as the judicial review proceedings have been concluded. In view of lead time problems, it is requested that the terms of the stay provide that in the event petitioners are not successful in the judicial review proceedings, the standard as promulgated, or such parts of it.as shall be held lawful by the Court, will go into effect on the date of judicial deter mination as originally issued, which means that the emergency standard will be continued for ninety additional days after that date, and there will be an additional .twelve-month per'iod during which the use of respirators for levels of exposure below 25 ppm will be optional with employees." In view of the fact that the Court entered an order stating that the stay motion was granted, we think it clear that the Court intended both that the emergency temporary standard should stay in effect .during the period of the stay and that the lead time provisions requested, including, the ninety-day period, would be in effect in the event that petitioners should be unsuccessful in their petition for review. Accordingly, we see no need for any further clarification of the type requested by the Secretary. If the Court should decide, additionally to clarify its order, we submit that it should do so in terms which achieve the result suggested by petitioners in their motion 3 and quoted above. No one has intended that the emergency temporary standard 'should not remain in effect during the period of the' stay. So far as lead time is concerned, a reasonable lead time in the event of a decision in favor of 'the Secretary would be essential, in order to permit compli ance with numerous provisions in the standard such as those relating to monitoring, respirators, engineering changes, and signs and labels. Petitioners' motion proposed precisely the same lead time provision which had been included by the 1/ . Secretary in the permanent standard as promulgated. For the foregoing reasons, we respectfully request that the Court deny the motion for clarification or issue an 2/ order of clarification in the terns urged herein. Respectfully submitted, <5: <35 <35 <33 K)' <33 <-a Zl OF COUNSEL: Peter M. Phillipes John Thomas Smith -II Jonathan M. Weisgall Covington & Burling 888 Sixteenth Street, N.W. Washington, D.C. 20006 December 27, 1974 George Rowe, Jr. Fulton, Walter & Duncombe 30 Rockefeller Plaza New York, New York 10020 Allan J. Topol Covington & Burling 888 Sixteenth Street, N.W, Washington, D.C. 20006 Attorneys for Petitioners 1/ The variance provision (29 U.S.C. 655 (b) (6) (A)) is not an effective remedy for the reasons set forth in petitioners' reply memorandum in support of their motion for stay, 2/ The Court may alternatively wish to consider adoption of the suggestion made in the Secretary's Motion for Clarification, i.e,, to address the question of lead time in its decision on the merits. CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the Response to the Secretary*s Motion for Clarification of Stay Order was served, by first-class mail, postage prepaid .this 27th day of December, 1974, to: Stephen F. Eilperin, Esq. Department of Justice Room 3547 Constitution Avenue*between 9th and 10th Streets Washington, D.C, 20530 Counsel for Respondents, George H. 'Cohen, Esq, Bredhoff, Cu'shman, Gottesman & 1000 Connecticut Avenue, N.W. Washington, D.C, 20036 Counsel for Intervenor, the Industrial Union Department, Cohen AFL-CIO, Jerome H. Heckman*, Esq. Keller and Heckman 1150 Seventeenth Street, N.W. Washington, D.C. 20036 Counsel for The Society of the Plastics Industry, Inc,, J. Albert Woll, Esq. Woll, Mayer & Gold 815 Fifteenth Street, N..W. Washington, D.C. 20005 . Counsel for Intervenor, American Federation of Labor and Congress of Industrial Organizations, John J. Cassidy, Jr., Esq. Vedder, -Price, Kaufman & Kammholz 39 South LaSalle Street Chicago, Illinois 60603 Counsel for Intervenor, Firestone Plastics Company, ` I Donald L. Morgan, Esq. Cleary, Gottlieb, Steen & Hamilton 125.0 Connecticut Avenue, N.W. Washington, D.C, 20036 Counsel for Chemical Fabrics and Film Association.' Allan J y Topol 3*3 e=3 S3 a? r-o <53 <53 O' S v*