Document gbmOX0kx7mn8JJBGjz1MRaL43

WUJ.IAM s.sWr 'NBTH K. > UUN.HAftPHR ^ OTA H. UAH* ^OHANA BVQU'ZAXT 24, KKVTN fOWBIl JIKAD BXTftOTBLP 4ALSO ADMITTED IN TRXA.S SWIFT, SPEARS St HARPER, L.L.F. ATTORNEYS AT LAW J'OST QITICBiUX ixiu LA3CR CHARLES, LOTTT.lIANA 70402-1all) TBTJlPHdNB (314)433-1171(7 November 18, 1999 JTRBETADnRJiSS: 4-PLUOK I'TRSTFEDERlAJ. RTTILDE^C 1133 LAZSSHO&ii PBJVB LAKE CHAR7J0I, LA 70601 TKLIU'AX {SIS) 433-US2K VIA FACSIMILE Mr, William B. Baggett, Jr. BAGGETT, MCCALL Sc BURGESS Post Office Drawer 7820 Lake Charles, LA 70606-7820 RE: Daniel J. Ross, et ux Vs. No. 90-4837 Conoco Inc., er al Deaf Billy: Pursuanr to the. case master's recommendations concerning BFG's claims ofprivilege, the company course ofbusiness documents and litigation workproductdocuments which were ordered to be produced by the case master has been forwarded to Alphagraphics for bates numbering. Those documents range from BFG51913a-BFG54902. A copy of those documents arc at Alphagraphics and can be picked up by your office at any time. Additionally, per order ofthe court, please return the inadvertentlyproducedprivileged document bearing bates number BFG35288-35289 so rhat BFG may properly include it on its privilege log. Sincerely, Mv$E/Jsj due MIRCHANA S. EVERHART Enclosure cc: Woody Ban Ted Laszlo Case Master Johnson MEMORANDUM February 14, 1983 TO: FROM: SUBJ: Edward M. Faber Thomas F. Harrison Review of Reported Standard. OSHA Cases Involving the VCM I have reviewed the six cases that you located in the Occupational Safety and Health Cases series; these appear to be the only reported decisions involving interpretation and con struction of OSHA's vinyl chloride regulations. The cases show an evolutionary process veering away from a strict interpretation of the letter of the law to an approach that seems to favor looking at the spirit of the law. In the first five cases, decided between 1975 and 1977, the Agency and reviewing courts were very much concerned with applying the law and regulations precisely as written. The goal was health protection at all costs, and industry would be afforded no discretion in complying with the literal re quirements of the OSHA regulations. Indeed, the one time the Agency attempted to depart from the literal approach (Western Electric Inc., 4 OSHC 2021), it was summarily reversed by the U.S. Court of Appeals for the Second Circuit (Marshall v. West ern Electric, Inc., 4 OSHC 2054). These matters stood until Hooker Chemical Company was decided in 1981. In that case an OSHA inspector issued a cita tion to Hooker for failing to provide special training to em ployees working in areas of a resin plant where vinyl chloride concentrations did not exceed the "action level" of 0.5 ppm averaged over an eight hour work day. An Administrative Law Judge vacated the citation on the ground that the vinyl chlo ride level at the worksite was too low to require application of the training standard. He reached this result despite the fact that the regulation specifically requires that special training be provided for each employee engaged in vinyl chlo ride operations and that the training requirement is not con ditioned upon any particular exposure level. The OSHA Review Commission ordered a review of the decision sua sponte. However the Secretary of Labor filed a letter with the Commission urging that the ALJ's decision be affirmed. The Secretary (a Reagan appointee) announced a new OSHA enforcement policy and said that the training requirements 0 1^ BFG51913A were not applicable because Hooker's "operations simply are processes which could result in hazardous exposure to vinyl chloride by the nature of the operations themselves." (See OSHC 1580.) Based on the new policy, the Review Commission affirmed the ALJ's decision by a 2-1 vote. not 9 Under this Administration's policy, then, it appears that OSHA will be more concerned with whether an employer's action causes or results in "hazardous exposure to vinyl chlo ride" rather than whether it is a literal violation of the regulation. Two cautionary points must be made, however: this new policy has not yet been tested in court, and any policy decision can be changed by a future administration of a different political persuasion. ^ bj1/0 0 60M Thomas F. Harrison *K) * BFG51914 "\ 4^