Document g2mqLD7QbZ6Qz2Dqq4J5E0n2J

PLAINTIFF'S EXHIBIT Washington Office Area Coda 202 857-5000 To Call Writer Direct 202857- 5018 KIRKLAND 8ELUS 1776 K Street, N.W. Washington, D.C. 20006 May 27, 1980 Chicago Office Area Code312661-2000 Telex 25-4361 200 E. Randolph Drive Chicago, III. 60601 BY HAND NOTE: Similar letter sent to CPSC. Mr. Steven D. Jellinek Assistant Administrator for Toxic Substances Environmental Protection Agency' 401 M Street, S.W. Washington, D.C. 20460 Dear Mr. Jellinek: The Asbestos Information Association/North America (AIA/NA) is becoming increasingly concerned with EPA's plans for a July 14-16, 1980, "National Workshop on Substitutes for Asbestos" and has asked that I write this letter on their behalf. AIA/NA is persuaded that, unless alternate plans are adopted soon, the Workshop will constitute an unauthorized use of Government funds to promote use of substitutes for asbestos and asbestos-containing products. EPA should be seeking full and accurate infor mation on asbestos substitutes. Indeed, AIA/NA's comments on EPA's Asbestos Commercial and Industrial Use ANPRM noted: TSCA mandates that in considering the benefits of chemical use, EPA also assess and determine the availability of substitutes for the chemical. (at 17) And: [T]he health consequences of alternative substances are crucial to determination of unreasonable risk [under TSCA)(at 18) AIA/NA thus fully supports EPA efforts to explore the tech nical, economic and medical status of substitutes for asbes tos and asbestos-containing products if it is to pursue its announced intention of issuing a TSCA 6 rule on asbestos. CAPCO JEN 0006808 KIRKLAND Sw ELLIS Mr. Steven D. Jellinek May 27, 1980 Page 2 .... AIA/NA strongly opposes, however, the format that EPA proposes to.use to explore such issues. Based oh what we have been able to learn, it appears that the Agency intends to go beyond collection of information and to con duct a session the purpose of which will be to promote use of such substitutes. This implication comes through unmis takably from the draft brochure that indicates among those "who should attend" the Workshop are "purchasers" and "mar keting representatives." There is no reason to invite such asbestos customers, unless, as the brochure suggests, their participation is desired at the planned "product review sessions" to which producers of asbestos and asbestos-con taining product substitutes are being invited to "exhibit a product or display information." AIA/NA's fears that EPA is staging what amounts to a trade show for competitors of asbestos products are heightened by the Agency's efforts to have its "camera-ready" advertisements for the workshop widely disseminated in the trade press. Inevitably, EPA sponsorship of such. a session would- tend unlawfully to discourage asbestos purchases and to encourage sales of competing^ non-asbestos products. Nowhere in TSCA or other law do we find authorization for such commercial activity by the Agency. Such activity is - analogous to the adverse agency publicity enjoined in Silver King Mines, Inc, v. Cohen, 261 F. Supp. 666, 674 (D. Utah 1966), because it was "for the purpose merely of bringing pressure to bear upon those involved in administrative or judicial proceedings in which the [Securities and Exchange] Commission is involved irrespective of any public adminis trative or judicial finding and as a general enforcement policy." In Cohen, as in other cases, courts have disap proved of Government efforts to adversely . affect private parties through publicity and other activities outside statutorily granted procedures. See, e.g., Joint AntiFascist Refugee Committee v. McGrath, 341 U.S. 123 (1951); B.C. Morton International Corp. v. EPIC, 305 F.2d 692 (1st Cir. 1962); GTE Sylvania Inc, v. CPSC, 404 F. Supp. 352 (D. Del. 1975), 443 F. Supp. 1152 (D. Del. 1977), aff'd, 598 F.2d 790 (3d Cir. 1979), cert, granted,'48 U.S.L.W. 3367 (Dec. 3, 1979). AIA/NA has worked closely with Mr. Richard Guimond of EPA, suggesting names of persons with expertise in various segments of the asbestos industry who might be invited to CAPCO JEN 0006809 KIRKLAND &. ELLIS Mr. Steven D. Jellinek May 27, 1980 Page 3 speak at the Workshop. At the same time, we have cautioned him about AIA/NA*s concerns as expressed here, that EPA may be going beyond its legitimate information collection role. Although we have been told that EPA is sensitive to these concerns, the program that the Agency is planning, and the publicity that it is generating cannot help but exacerbate our feeling that EPA is. going beyond lawful and proper bounds. To help alleviate the problems noted above, A1A/NA suggests the following guidelines for the conduct of the Workshop: (1) The Workshop should not include any Product Review Sessions. It is difficult to view the Product Review Ses sions as other than commercial efforts by EPA to encourage purchase of non-asbestos products. Exhibits and displays are being solicited only from persons with "substitutes for asbestos." We fail to see how such activities will contri bute to the proper information-gathering purpose of the Workshop. -^ (2) Sufficient time should be allowed for discussion and comment from the audience after each speaker (at least 50% as much time as is allowed for presentations). As EPA is well aware, the issues.to be examined at the Workshop are complex and difficult. Only if there is ample time for dialogue among the persons attending the Workshop will there truly be an opportunity for collection of the desired information. Indeed, unless ample time is allowed for such dialogue, we question whether the sole purpose of the event is to promote the commercial endeavors of parties manufacturing products in competition with asbestos products. EPA could directly solicit information from the speakers without all the arrangements and publicity attendant with a three-day workshop if that is the only source of information it seeks to tap. (3) The program should be expanded to encompass the many products being developed by the asbestos industry to foster safer use of asbestos. CAPCO JEN 0006810 KIRKLAND KELLIS Mr. Steven D. Jellinek May 27, 1980 Page 4 Prominently missing from the Workshop program is any coverage of. the development of asbestos-containing products with reduced possibility of hazardous use or mis use. Clearly, such products, and improved methods of use of such products, are "substitutes",,for asbestos products of the past. : -.'I ' AIA/NA has been' in the forefront promoting safer use of asbestos, as demonstrated most recently by its Recom mended Standard for Occupational Exposure to Asbestos in Construction and other Non-Fixed Work Operations. We believe that any workshop conducted by EPA should include discussion of the many such efforts of the asbestos industry to "sub stitute" products that use asbestos in a way that eliminates unreasonable risk to the health or safety of those who make or use the products. Mr. Guimond suggested several days ago that EPA might be interested in conducting a second workshop on essential uses of asbestos. We do not believe that any such efforts could cure the' deficiences in the planned Workshop. . The issue of asbestos? and its substitutes can only be properly addressed together; separate workshops would confuse, rather than enlighten, the relevant issues. "Moreover, any effort, by EPA or any other observer, to limit discussion to "essential" uses of asbestos would, by defini tion, foreclose relevant issues, rather than .encourage their examination. Only if asbestos `and asbestos-containing products and their substitutes are considered jointly will it be possible for EPA to obtain a better understanding of the complex technological, economic and medical issues. If conduct of a useful workshop would require postponement beyond the presently scheduled July 14-16 dates, AIA/NA urges EPA to postpone its session. In any event, we stand ready to continue our assistance to the Agency by suggesting participants who would contribute to proper conduct- of a meaningful workshop. AIA/NA thus remains ready and willing to cooperate with EPA to assist the Agency in obtaining a better under standing of asbestos and the asbestos industry. Our con tinued cooperation, however, depends on EPA's commitment to a fair and rational evaluation of all issues. Unfortunately, CAPCO JEN 0006811 KIRKLAND ELLIS Mr. Steven D. Jellinek May 27, 1980 Page 5 the plans for the Substitutes Workshop serve only to confirm our belief that EPA has abandoned science and logic in its quest for media approval and Congressional funding. Sincerely, cc: Richard A. Gross Edward W. Warren ' Counsel for the Asbestos Information Association/ North America CAPCO JEN 0006812 3! Federal Register / Vol. 45j No. 103 / Tuesday, May 27, 1980 / Notices CONSUMER PRODUCT SAFETY COMMISSION ENVIRONMENTAL PROTECTION AGENCY . .. [FRL1500-7; OPTS-610058] Workshop on Substitutes for Asbestos; Meeting " agencies: Consumer Product Safety Commission and Environmental Protection Agency." .': / action: Notice of A Workshop on Substitutes for Asbestos. ' ., ' ~ summary: The Environmental Protection Agency (EPA) and the Consumer Product Safety Commission (CPSC) will sponsor a Workshop on Substitutes forAsbestos from July 14-16,1980. The- workshop will be held at the SheratonNational Hotel, 900 S. Orme Street, Arlington, Virginia. There is no charge for admission'to this workshop. FOR REGISTRATION INFORMATION contact: John B. Ritch, Jr., Industry Assistance Office (TS-799). Environmental . Protection Agency, 401M Street SW., ' Washington. D.C. 20460, Toll-free: 800-' 424-9065. In Washington, D.C: 544-1404. FOR TECHNICAL INFORMATION CONTACT: Hope Pillsbury, Workshop Coordinator (TS-794). Office of Pesticides and Toxic Substances. Environmental Protection Agency, 401M Street SW,, Washington, D.C. 20460, 202-755-6023. SUPPLEMENTARY INFORMATION: The purpose of the workshop is to help EPA and CPSC gather information on die current technical and economic issues and potential health hazards relating to substitutes for asbestos and asbestoscontaining products. .The workshop will be structured so that participants may ' choose to attend the entire workshop, the technical/economic portion, the'. .health portion, or individual sessions..,.'' Participants from industry, academia.'' government, organized labor, and public interest groups, as well as other interested parties are invited to attend. At the outset of the workshop, overview talks on technical, economic and regulatory aspects'of asbestos substitutes will be presented. These talks will include subjects such as factors affecting speed of technological innovation, problems of market definition, and'the regulatory status of. asbestos. - The main body of the technical/' ' economic portion of the workshop will consist of talks on substitutes for the ' approximately ten asbestos product - categories, followed by discussion sessions. There also will be opportunities to discuss broader issues such as the ability of substitute products to meet new or currently existing performance standards. . .. The second portion of the workshop' will focus.on health effects of both-- = - fibrous and nonfrbrous types of . substitutes. An overview talk oh routes' of exposure will be given, followed by talks on epidemiolbgicarid experimental studies that have been made on the ,.,M various substances that can be used as- substitutes for asbestos.' Discussion^"" sessions will be included on the agenda.. A session is planned in which- - manufacturers and other experts on - ' substitutes can inform the two Agencies about the characteristics of products that they make or have studied. Persons who register by early Juiie_', 1980 will receive a background -- " information packet prior to the workshop to help them prepare for It Dated: May 14, 1980.. . .- Steven D. Jellinek, - ^ AssistantAdministrator Office ofPesticides and Toxic Substances. Environmental- Protection Agency. . Dated: May 19,' 1980. Dr. Peter W. Pretie*, DeputyAssociate Executive Director, Health Sciences, ConsumerProduct Safety ' Commission. ' [FR0oc.0-158MFUt<i*4ji**tni] BILUMO CODE *5*0-0*41 1 CAPCO JEN 0006813