Document jyveOZ8LobZe5qZOED0oRaJyO

JOSEPH E. KEELER JEllOMF. H HECKMAN CHARLES M. MEEHAN WILLIAM 11, BOHGHESANr, JR. BOMEHT K TIEHNAN WAYNE V BLACK DAVID L HILL MAHTIN W. DEHCOVICI PETER M NEMKOV JOSEPH E HADLEY CAROLE C, HARRIS WILLIAM W. PUGH PETER THOMAS SMITH LAW OFFICES Keller and Heckman USO ITt? STREET, N. W. SUITE lOOO 'WASftINOTON, D- C- 0030 'aIP 'ire F-^T- ^-Cb ^ X/' 7/4 TELEPHONE l . 20Cj-'JZOO F5CABLE DRESS 'KELMAN" December 3, 1974 TO: All' Members of: SPI Food, Drug and Cosmetic Packaging Materials Committee; General Polyvinyl Chloride Interest Mailing List; Ad Hoc Liquor Bottle Committee; Plastic Pipe Institute (Executive Board); Plastic Bottle Division (Voting Representatives) ; SPI Executive Committee; .SPI Public Affairs Committee; VC and PVC Producers Committee Ladies and Gentlemen: The purpose of this letter is to update you once again on the status of the pending Petitions for Review of the Occupational Safety and Health Administration's (OSHA) October 4, 1974 Standard, and to inform you about the latest "rumors" concerning the Food and Drug Adminis tration's (FDA) proposed Interim Food Additive Regulation concerning polyvinyl chloride, said proposal still not having been officially published as of this date. Continuing in our efforts to keep everyone on our mailing list as fully apprised as possible about the sub stantive aspects of the legal proceedings before the United States Court of Appeals for the Second Circuit, the following is a brief outline of what has occurred since our November 19, 1974 report: 1. You will recall that Counsel for the Government had filed a Motion to consolidate rA bece'v:o ro.i-n- o- r-7'4 SL 092642 BC 91974 December 3, 1974 Page Two all the vinyl chloride cases for purposes of Oral Argument before the Court* Sub sequent to the Government's Motion on November 14, a coordinated effort was undertaken to develop an Oral Argument schedule which would be acceptable to the Court and which would present a strong industry position with as much breadth as possible. Consequently, SPI and the other Petitioners in the Second Circuit filed Motions in Opposition to the Govern ment's move to consolidate all the cases for Oral Argument. This procedural issue remains unresolved as of now but we feel reasonably confident that our presentation to the Court will be favorably received so that the Oral Argument on industry's behalf will be presented in three parts by three of the Counsel for Petitioners, including the undersigned. The issue of limiting total argument time, also raised by the Government in its reply to our original proposed schedule, also remains to be ruled upon by the Court. 2. In the meantime, on November 22 and 26, respectively, the Court filed an Order and Notice moving the date for Oral Argu ment up to December 13, 1974. As previously reported, we had been anticipating that the Court would schedule this case during the week of December 16; however, because of scheduling problems with an already crowded calendar, 'this slightly earlier date of December 13 was set with the concurrence of all parties. The only complication this creates is that the filing time for Reply Briefs has now been moved up two days to December 11. Since the Government's Brief is due on December 9, the filing of the SPI Reply is made much more difficult time-wise. Of course, it is even possible that we may SL 092643 December 3, 1974 Page Three forego filing a Reply Brief, this being dependent on what the Government's Brief covers. 3. As was the case at the time of our November 19 letter, OSHA still has not responded to our November 5 Petition for a Stay of Effective Date of the Vinyl Chloride Standard. For this reason, a "Motion for a Stay Pendente Lite" was filed today with the United States Court, of Appeals for the Second Circuit. Based on the same issues as those raised in the stay request filed with OSHA, the new Motion not only requests that the Court order a stay of the permanent Standard pending its decision, but also seeks a Stay Order which would provide that any part of the Standard upheld on review go into effect as though the date of the Court's decision holding such a provision lawful were the date that the Standard was first promulgated. If the Court does grant a stay including this provision, companies required to comply with the Standard would still have some "lead-time" during which preparations for attempting to achieve compliance could be made. It should also be noted that the Motion asks the Court to withhold its decision until after Oral Argument on the merits of the case and that following this, i.e., on or after December 13, the Court rule on the Motion as soon as possible in light of the very early effective date of the Standard. A copy of the SPI Motion filed today is enclosed. We have been advised that motions looking towards the same end were also filed today on behalf of other Petitioners, i.e., Air Products--Hooker~Tenneco and Firestonc--Union Carbide, but we have not received copies thereof as yet. SL 092644 December 3, 1974 Page Four 4. Other events of interest, mostly procedural, are as follows: on November 18, 1974 the B. F. Goodrich Company filed a Motion in the Second Circuit to consolidate its Petition for Review with the SPI case; on November 26 Union Carbide filed a Motion to consolidate its case with Firestone; and on November 27 Borden filed a Petition for Review in the Sixth Circuit. In summary, the Oral Argument in the Second Circuit cases is now scheduled and will involve the merits of the appeals as well as the SPI Motion for a Stay and other Motions to the same effect filed by other Petitioners. The complete consolidation issue and the details as to time allotments for Oral Argument have not yet been resolved. As a last "OSHA item," corrections to the Standard were published on page 41848 of today's Federal Register, a copy of which is enclosed. In addition to the corrections, the "inadvertent omission" of a Type C supplied air continuous flow-type respirator in the Standard was corrected. Inasmuch as these corrections are self explanatory and not known to be of substantive significance, we are passing the- information on without further comment. With respect to FDA activities, we understand that a number of additional companies have informed the Food and Drug Administration quite strongly about the effects that could be anticipated if the Food and Drug Administration persists in its announced intention to publish a proposed Interim Regulation along the lines most recently indicated and discussed in our October 30 and November 19 letters. We are hopeful that this information is having some effect at FDA and can only urge that as many of you as may be adversely affected as possible write and let the Administration know of your concerns. Furthermore, we believe it would be altogether appropriate for you to contact your elected repre sentatives and governmental officials at any level that might be interested in the welfare of your companies. SL 092645 December 3, 1974 Page Five For purposes of review, the type of proposal that we understand FDA is still considering would be directed to the packaging material itself and not necessarily at the quantity, if any, of vinyl chloride' monomer that might be migrating. Thus, the Agency has been considering a proposed Regulation that would provide for the use of PVC packaging materials as single use containers provided that the thickness is not greater than 5 mils (0.005 inches) and, at the same time, has a residual monomer level that does not exceed 1 part per million. Provision would also be made for the use of polyvinyl chloride for repeated use applications (as in processing equipment, piping, conveyor belts, etc.), provided the residual monomer level does not exceed 10 parts per million. As a^result of some of the protestations that FDA has received since the foregoing considerations became publicly known, it is now further considering distinguishing in its proposed Interim Regulation between foods, which would be subject to the foregoing; and cosmetics, drugs and devices, which would have different requirements. I1ore specifically, we understand that cosmetics which arc not subject to in gestion might have no restrictions on wall thickness with a 10 part per million residual monomer level. This would permit the use of PVC bottles for shampoo, but not for mouth washes. As you know, we continue to have doubts as to whether the Food and Drug Administration has the authority to regulate the constitution of packaging materials for cosmetics and medical devices, not to mention whether it has the authority to regulate potable water pipe. In connection with FDA's authority over pipe, we thought you might be interested in a news item that appears in the December 2, 1974 issue of Food Chemical News, With the permission of the publisher we are including a copy of page 30 of that publication which reports the House-Senate compromise on the Drinking Water Supply Bill (S. 433). This legislation would reaffirm that the Environmental Protection Agency sets standards for drinking water. Where the Food and Drug Administration would then fit into the regulatory picture, and what arguments we might want to advance on this score if and when the FDA pro posal is published and relates to potable water pipe, is still somewhat unclear, but, for the present, we thought we would report this bit of collateral information to you. SL 092646 December 3, 1974 Page Six We hope we are being reasonably effective in keeping you up to date on the various activities going on in connection with the many aspects of the VCM-PVC matter. Certainly, we shall continue to make every effort to keep you informed as fully and promptly as we can. SL 092647 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT THE SOCIETY OF THE PLASTICS INDUSTRY, INC., ) Petitioner, ) ) v. . ) ) ) OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ) UNITED STATES DEPARTMENT OF LABOR; PETER J. ) BRENNAN, SECRETARY, DEPARTMENT OF LABOR; AND ) JOHN STENDER, ASSISTANT SECRETARY FOR OCCtJ- ) PATIONAL SAFETY AND HEALTH, ) Respondents, ) ) FIRESTONE PLASTICS COMPANY, a Division of THE ) ) FIRESTONE TIRE & RUBBER COMPANY, ) Intervenor, ) ) INDUSTRIAL UNION DEPARTMENT, AFL-CIO, ) ) Intervenor. ) ) ) ____________________________________________ ) No. 74-2284 MOTION FOR STAY PENDENTE LITE Pursuant to Rule 18 of the Federal Rules of Appel late Procedure, Petitioner herein, The Society of the Plastics Industry, Inc. (SPI) hereby respectfully moves that the Court promulgate an Order staying, pending the decision by this Court in the above-captioned case, the terms of the recently promulgated Standard for Occupational Exposure to Vinyl SL 092648 -2 - Chloride, 29 CFR 1910.93q (39 Fed. Reg. 35890, October 4, 1974) which Standard is the subject of the Petition for Review in this case. The Society of the Plastics Industry does not seek a decision on this Motion by the Court prior to the oral argu ment on the merits of the case scheduled for December 13, 1974. It is, however, respectfully requested that the Court consider this Motion for Stay and rule on it as soon as possible after the oral argument in light of the early effective date of the Occupational Safety and Health Administration (OSHA) Standard for Exposure to Vinyl Chloride. The above-captioned case with which this Motion is associated is a Petition for Review brought pursuant to Section 6(f) of the Occupational Safety and Health Act of 1970 (29'U.S.C. 655(f)) in order to challenge the validity of the new OSHA Standard promulgated on October 4, 1974. Although providing a specific means for review of a standard promulgated by OSHA, the Act states that such Petitions for Review: "... shall not, unless otherwise ordered by the Court, operate as a stay of the standard." 29 U.S.C. 5655(f) (1970). Accordingly, the Society petitioned OSHA for a stay of the SL 092649 3 effective date of the Standard on November 5, 1974. ~ To date, however, OSI-IA has neither acted upon nor acknowledged this application for a stay. In light of OSHA's inaction and the extremely limited time remaining before the Standard would become effective, the Society hereby moves this Court to stay the implementation thereof pending the Court's de cision in the instant case. The grounds for this Motion are: (1) Petitioner is likely to prevail on the merits; (2) parties represented by the Petitioner will suffer irreparable injury if, without the benefit of interim relief, the Standard is ultimately found to be unlawful after its effective date; and (3) the adoption of an Order by this Court staying the effective date of the Standard will neither adversely affect any party to the instant litigation, nor the public interest if the Petitioner does not 2/ prevail on the merits. 1/ A copy of The Society's "Petition for Stay of Effective Date of Standard" with its supporting materials is attached hereto as Exhibit #1. 2/ Greene County Planning Board v. Federal Power Commission, 490 F.2d 256 (2d Cir. 1973); Eastern Air Lines, Inc. v. Civil Aeronautics Board, 261 F.2d 830 -(2d Cir. 1958); and Air Line Pilots Ass'n, Internat'l v. Civil Aeronautics Board, 215 f\2d 122 (2d Cir. 1954); accord, Middlewest Motor Freight Bureau v. United States, 433 F.2d 212, 241-42 (8th Cir. 1970), cert, denied, 402 U.S. 999 (1971). SL 092650 4 With regard to the likelihood of The Society of the Plastics Industry prevailing on the merits, its Brief on the merits of the Petition for Review has already been filed with the Court. This document sets forth in detail the legal and factual reasons forming the basis for the Society's contention that the Standard is unlawful. Furthermore, since a decision on this Motion for a Stay is not being sought prior to the time of oral argument on the merits of the case, the Court will have had the benefit of complete development of the issues prior to rendering its decision on this Motion. Consequently, there would seem to be no need to repeat in detail here any of the arguments made in the Brief or to be made orally before the Court. With regard to the irreparable injury which would be suffered by the parties represented by the Society should it prevail on the merits after the Standard becomes effective, the facts, as set out in the attached Affidavit of Jerome H. Heckman, Esquire, are that the respiratory protection re quirements of the Standard are beyond the compliance capabilities 3/ of the industry. 3/ The respirator requirements of the Standard are set out at 29 CFR 1910.93q(g); 39 Fed. Reg. 35896-97. This portion of the Standard is found at Joint Appendix (JA) 007-08 a copy of which is attached hereto as Exhibit #2. SL 092651 5 To briefly summarize the Petition submitted to OSHA, firstly, the permitted equipment is not available in sufficient supply now, nor will it be on January 1, 1975 or in the im mediate future. Secondly, not only is much of the respiratory protective equipment specified for use under the Standard not as yet approved for the specified uses, but, on the basis of the attached memoranda from the Acting Director of the National Institute of Occupational Safety and Health (NIOSH) Office of Research and Standards Development to the Acting Director of NIOSH dated October 18, 1974, and from the Acting Director of NIOSH to the Director of the OSHA Office of Standards, it is almost a certainty that such yet to be approved respiratory protective equipment will not be approved by January 1, 1975. Thirdly, a sufficient supply of such equipment cannot, even with all appropriate approvals, be made available in sufficient time for the industry to comply with the Standard by its present effective date. Thus, failure to grant the requested relief would force large segments of the vinyl chloride monomer and poly vinyl chloride resin industry to cease manufacturing operations after December 31, 1974 if for no other reason than because the respiratory protection requirements of the Standard are beyond the compliance capabilities of the industry. SL 092652 6 As to the possible adverse effect upon other parties to the litigation and to the public, it is clear that a stay of the Standard will cause no public harm nor any injury to employees or any other segment of the public. The Emergency Temporary Standard limit allowing up to 50 parts per million (ppm) of vinyl chloride in the workplace atmosphere, in effect since April 5, 1974; the Assistant Secretary's 90-day delay of the effective date of the 1 ppm permissible exposure'limit in the permanent Standard; and his continuation of the 50 ppm level during this period testify to the fact that a stay of the Standard will cause no public harm nor any injury to i/ employees or any other segment of the public. Also, since every effort has been made to expedite these judicial pro ceedings, the requested stay would be of limited duration. WHEREFORE IT IS RESPECTFULLY REQUESTED that the Court enter an order staying the provisions of the permanent Standard and continuing the terms of the Emergency Temporary Standard in effect until such time as judicial review is concluded. It is also requested, in view of the practical lead-time problems created by the terms of the Standard itself, that 4/ 29 CFR 1910.93q(o); 39 Fed. Reg. 35898. This portion of the Standard is found at JA 009, a copy of which is attached hereto as Exhibit #3. SL 092653 the Court's Order provide that such parts of the Standard as may be held lawful by the Court, go into effect as though the date of the Court's decision to that effect were the date that the Standard was first promulgated. Such a pro vision would, like the original terms of the permanent Standard, continue the Emergency Temporary Standard in effect for ninety days after the decision and, at the end of that time, a 12 month period would commence during which the use of respirators would be discretionary for exposures below 25 ppm. Respectfully submitted Of Counsel: rome II. Heckman Keller and Heckman Joseph E. Hadley 1150 17th St., N.W. Peter Thomas Smith Washington, D.C. 20036 Keller and Heckman 1150 17th St., N.W. Attorneys for Petitioner Washington, D.C. 20036 Telephone: (202) 296-2700 Date: December 2, 1974 SL 092654 Exhibit #l' 1 UNITED STATES DEPARTMENT OF LABOR Occupational Safety and Health Administration In the Matter of: PERMANENT OCCUPATIONAL SAFETY AND HEALTH STANDARD FOR 1 ' EXPOSURE TO VINYL CHLORIDE ). ) ) Title 29, Code of Federal ) Regulations, 1910.93c, ) Vinyl chloride. ) ) Petition for Stay of Effective Date of Standard The Society of the Plastics Industry, Inc. (SPI), 1/ by its attorneys, hereby petitions the Assistant Secretary of Labor for Occupational Safety and Health to stay the recently promulgated standard for occupational exposure to ' vinyl chloride, 29 C.F.R. 1910.93q (39 Fed. Reg. 35890, October 4, 1974) . 1/ The Society of the Plastics Industry, Inc. is a corpora tion organized under the Not-for-Profit Corporation Lav/ of the State of New York. It is composed of approximately 1,400 member companies and individuals who supply raw materials; process or manufacture plastics or plastics products; engineer or construct molds or similar accessory equipment for the plastics industry; and engage in the manufacture of machinery used to make plastics products for materials of all types. The Society is the major national trade association of the plastics industry; its membership is responsible for an estimated 75% of the total dollar volume of sales of plastics in this county. It is through the SPI Vinyl Chloride Monomer and Polyvinyl Chloride Resin Producers Committee, an operating unit of SPI, that the plastics industry has coordinated its participation in the rulemaking proceedings concerning occu pational exposure to vinyl chloride. As such, therefore, the SPI has a direct interest in this matter in its capacity as designated representative of the affected employers. SL 092655 The primary ground for requesting this relief is, as set out in more detail in the attached Affidavit of Jerome H. Heckman, Esq., that the respiratory protection requirements/-.of the standard are beyond the compliance capabilities of the industry. Firstly, the permitted equipment is not available in sufficient supply now nor will it be on January 1, 1975 or in the immediate future. Secondly, not only is much of the respiratory protective equipment specified for use under the Standard not as yet approved for the specified uses, but, on the basis of the attached memoranda from the Acting Director of the NIOSH Office of Research and Standards Development to the Acting Director of NIOSH dated October 18, 1974 and from the Acting Director of NIOSH to the Director of the OSHA Office of Standards, it is anticipated that such yet to be approved respiratory protective equipment will not be approved by January 1, 1975. Thirdly, a sufficient supply of such equipment cannot, even with all appropriate approvals, be made available in sufficient time for the industry to comply with the standard by its present effective date. Failure to grant the requested relief would force large segments of the vinyl chloride monomer and polyvinyl t chloride resin industry to cease manufacturing operations after December 31, 1974. SL 092656 3 WHEREFORE, IT IS RESPECTFULLY REQUESTED that the Secretary 'expeditiously grant the relief requested herein, to wit: stay the effective date of that portion of the standard due to become effective January 1, 1975; and continue the aforementioned stay in effect until such time as sufficient quantities of approved respiratory protective equipment are available to the industry, or until a court determines that compliance with the relevant portions of the standard is not required. Respectfully submitted, THE SOCIETY OF THE PLASTICS INDUSTRY, INC. Of Counsel: Keller and Heckman 1150 17th Street, N.W. Suite 1000 Washington, D.C. 20036 Telephone: (202) 296-2700 DATE: November 5, 1974 SL 092657 AFFIDAVIT City of Washington ) ) District of Columbia ) ss: I, Jerome H. Heckman, of Washington, D.C., attorney for The Society of the Plastics Industry, Inc. (SPI), being first duly sworn, do depose and say as follows: 1. I am an attorney at law, a partner ih'the Wash% ington, D.C. law firm of Keller and Heckman and am General Counsel to The Society of the Plastics Industry, Inc. In that capacity, I have and continue to represent the Society and its members in matters with regard to the Department of Labor's Occupational Safety and Health Administration standard setting proceedings in the matter of occupational exposure to vinyl chloride. 2. I have reviewed the recently promulgated occupa tional exposure standard for vinyl chloride, 29 C.F.R. 1910.93q, published in the Federal Register on Friday, October 4, 1974 at page 35890 et_ sea. Based on knowledge, information, and belief acquired by receiving information from companies in the industry, X.ilurther state that, with regard to the aforementioned standard for occupational ex posure to vinyl chloride, it will be impossible for the i affected industry to comply with the Standard, especially SL 092658 2 the section entitled "(g) Respiratory protection" thereof (29 C.F.R. 1910.93q (g)) and that, therefore, unless appro priate relief is granted, a substantial number of vinyl chloride and polyvinyl chloride manufacturers in the United States will have to cease manufacturing and production operations after December 31, 1974. Likewise, many proces sors, fabricators and others covered by the Standard and requiring respiratory protective equipment will have to cease operations after December 31, 1974. .3 The specific nature of the requirements in the Standard, that is, the fact that every employee in every segment of the industry exposed to concentrations of vinyl chloride in excess of the permissible levels of 1 part per million (ppm) averaged over any eight hour period and 5 ppm averaged over any period not exceeding 15 minutes must be supplied with an appropriate respiratory protective device as set out in the Standard, suggested that insufficient quantities of the prescribed respiratory protective equip ment would be available in sufficient time to enable the industry to comply with the requirements of the Standard. 4. Following up on this, by telephone, we contacted individual VCM and PVC industry members covered by the Stan dard to determine the types and quantities of respiratory protective devices they would have to obtain in order to SL 092659 - 3- comply with the Standard's requirements. The specific figures requested and obtained covered equipment required, whether on order or not, which equipment would have to be obtained an$3 installed or otherwise on hand in order to N continue manufacturing operations on and after the effective date of the Standard, January 1, 1975. 5. Similarly, by telephone, we inquired directly of all known suppliers of the respiratory equipment listed in this Standard to ascertain whether these suppliers could, disregarding outstanding and unfilled orders,- supply the necessary respiratory protective equipment to the industry by January 1, 1975. 6. Comparing gross available supply with gross demand, we have determined that, even under the best of circumstances and assuming the timely approval of eligible equipment specifically permitted under the Standard, the gross demand is considerably in excess of the supply for the equipment required. 7. The specifics of the supply and demand situations, as very conservatively projected from the data gathered, are as follows: 2/ rr"The information in this survey was gathered by Counsel on a company confidential reporting basis so as to avoid any pos sibility of adverse antitrust considerations. Therefore, the detailed background data, affidavits and the like are not being .made available herewith, it being assumed that the data and information reported herein can be easily verified by the Department of Labor and the Occupational Safety and Health Administration. SL 092660 4 (a) For atmospheric concentrations of vinyl chloride that are unknown or above 3,6^0 ppm, the demand of the vinyl chloride monomer and polyvinyl chloride resin manu- - facturers is for 429 of the prescribed units with 1,072 air bottles. Current available supply is 3,325 units and 6,000 refills. The lag time for supply of additional units is in 'the range of 30 to 60 months. (b) For vinyl chloride concentrations not in excess of 3,600 ppm, there is a total demand of 3,186 complete units. The suppliers indicate that neither of the devices specified is available. As to the combination type C supplied air respiratory, pressure demand type, only a prototype model exists as of this time but it has not been approved by HIOSH and, even if it were, no estimates could be obtained as to when this device would be commercially available. As to the type C, supplied air respirator continuous flow type, the suppliers / of this equipment have informed us that NIOSII has refused to authorize the currently available equipment for use by this industry because the continuous air flow rate is insufficient. SL 092661 5 (c) For vinyl chloride concentrations not in excess of 100 ppm, the demand is for 614 devices of any permitted type. The suppliers report that this demand cannot be met. The demand type supplied air respirator supply picture is the same as that reported in subparagraph (b) above for the pressure demand type supplied air respirators. The same is true of the open circuit self-contained breathing apparatus discussed in subparagraph (a) above except that these devices permitted for less than 100 ppm are demand type rather than pressure demand.type. One supplier in formed us that an unknown quantity of demand type self-contained devices would become avail able at some unspecified time during the first half of 1975. As to the demand type supplied air respirators, commercially available devices of this nature are not currently HIOSH approved. However, if approval could be expeditiously obtained, .approximately 500 units could be / supplied by the first of the year with a lead time of eight months from the time of NIOSH approval and the filing of purchase orders for additional units. SL 092662 6 (d) For vinyl chloride concentrations not in excess of 25 ppm, demand for either unit permitted is 5,478 units with 108,397 refills. The- suppliers report that the powered air purifying respirator with hood does not exist. Canister gas masks, not yet approved by NIOSH, are available. Approxi mately 3,000 units and an unknown number of replacement canisters are currently available with a potential canister replacement produc tion of 30,000 units per month beginning after January 1, 1975. (e) For vinyl .chloride concentrations not in excess of 10 ppm, the demand for any permitted device is 2,940 units and 556,500 replacement cartridges as appropriate. The supply for the demand type supplied air respirators permitted is the same as reported in subparagraph (c) above. Chemical cartridge type respirators are available but have yet to be NIOSH approved. With NIOS.H approval, sup pliers indicate that 3,000 units and an unknown quantity of replacement cartridges are currently available and that potential replacement cartridge SL 092663 manufacture rates after January 1, 1975 are in the range of 200,000 units per month. From the foregoing it is obvious that the demand for respira tory protective devices exceeds both current available supply and the supply were all NIOSH approvals granted. The industry requires approximately 12,650 respiratory protective devices on hand and operable by January 1, 1975 since a major portion of the respiratory protective devices on hand in industry are not of the type permitted in the new Standard and the Standard very low permissible exposure limits combined with the very broad definition of regulated area has caused an expansion in the number of personnel who must be supplied with respiratory protective equipment. Other regulations and guidelines, both federal and state, will further increase the already high de mand . The available supply of respirators of all types is low because NIOSH approvals for certain types of equipment are lacking or have been withdrawn. Additionally, since the specific requirements of the Standard were not known until October 4, 1974, suppliers have not yet had an opportunity to plan and begin production of the appropriate equipment. In any case, total available supply at this time is 3,325 units. With NIOSH approval of all permitted systems listed SL 092664 8 in the Standard available supply would still only be 9,825 units. In^short, the current available supply is only 26% of current demand with optimum supply (expeditious NIOSH approvals) being only 78% of current demand. Without appro priate NIOSH approvals the industry is a minimum of 22% and a maximum of 74% short of the respiratory protective devices mandated by the Standard. These figures have been developed solely from the demand existing in the vinyl chloride monomer and polyvinyl chloride resin segments of the industry. The potential of additional demand being created by processors, fabricators and other elements of the industry could not be calculated and factored in to this survey. Nonetheless, it is patently obvious that any increase in demand from other segments of the industry will enlarge the gap between supply and demand. In light of the foregoing facts we have concluded that, because the supply for respiratory protective devices is so short, there is no likelihood that, even given NIOSH approvals and the most equitable ^apportionment of the avail able supply, all the closely interrelated and interdependent / segments of this industry could legally continue manufacturing Operations after December 31, 1974. An interruption in the % SL 092665 9 manufacturing abilities of raw materials suppliers, or the semi-finished products consumers and suppliers would have such a significant impact on the other elements of the in- / dustry that no portion of the industry,'even if it were itself able to meet all requirements of the Standard, could continue in operation because either the raw materials supply or the markets would cease to function. Jerome H. Heckman General Counsel The Society of the Plastics Industry, Inc. Keller and Heckman 1150 17th Street, N.W. Suite 1000 Washington, D. C. 20036 Telephone: (202) 296-2700 Subscribed and sworn to before me this 5th day of November, 1974. dota^ry Public Hi Seal: LTCft Ftb* 14, SL 092666