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t "PR-1 LAW OFFICES Kellek and Heckman ica c mulch ohc * _:.A*l*h*e.t9uMHC"UTa*v1**' < v ft, vft**4ft a*rm. *CAft.COMHCDOviei MAift'ft a* vaA+HA :ma*c t. MeaaoMC a ton cvcm ** ft, etfNAftftft ,*** ft. Dyftftft* ''W Le.ftAi*,*wcaMuMl > `Hi* ft, agy.Mfteft ,**ftttftft ft, WAl.ftft*M fVftftS*.i,an *. (iMMftal A. M'UWAft ft* MM #ftftftftft*ft**Afteft.uS* ** ft. ftftftftftftfttm** WftAS w. atftaiftit fpt,w(rf#tWcf u- A^y#*#||f Hina m, MWA. ftlCVCftf MAN* ft. ftlUkJfftV Aftftwn ***4*# A, **** Utft AMfNtffttMMH*ft*ftf**4 MAMMON U 0CMM4N* ftgftAM ft. W** ^*aftfMtwni-tFrctfot IiNn VftlftMftlMWft'An.yftAWNiTA o*i* "tftMi**Cft in mam*wano onwv AftMIftftftft ill ftOMMCITIftVT ANft N* yftH OHM* Utfo 17" STFSET. W.W. SUITE 1000 wassisoton. D C. 80039 (203) 95S-3900 March 9, 1989 MtftMTine ft'. ;sftA#NUiStl fVt .Ol*KW*tR. *,**. *ftft(VT A, NAtNCwft. ft*, ft, J9N ft. HftftftH-AM. A*, ft. rctcedMMWMi<*T*9Mf (MftiMtCft 5-AHU* P- tUftNC* teuift reuifftft* tftft# **<* 'aCLMftM1' NMittlTlt DIMftftt ftiac UUMftftft \ (202) 956-5641 VIA MSggBKfiSB Marilyn Browning, Esq. Chemical Manufacturers Association, Inc. 2501 M Street, N.W. Washington, D.c. 20037 Re: Judicial Review of 0SHA PEL For EDO Dear Marilyn: This letter follows my earlier discussions with you, Hank Sauer, and Neil King of wilmer Cutler & Pickering regard ing joint participation of the Chemical Manufacturers Associa tion (CMA) and The Society of the Plastics Industry, Inc. (SPI) in an action seeking judicial review of the Occupational Saf ty and Health Administration's (OSHA) air contaminants rule. In particular, this action would challenge the Agency's reduction of the permissible exposure limit (PEL) for ethylene dichloride (EDC) to 1 part per million (ppm). 54 Fed. Reg. 2332 (Jan. 19, 1989). As discussed below, the issues we plan to raise on behalf of SPI and its Vinyl Institute are consistent with the comments filed by CMA during the OSHA rulemaking. Our argu ments are ..specific to. EDC and will not challenge the propriety of the ruSfti&iking as a whole or conflict with CMA's general support for the rule. A. ISSUES ON APPEAL The former OSHA standard for EDC was 50 ppm as an eight-hour time weighted average (TWA) with a 100 ppm short term exposure limit (STEL) (maximum duration of 5 minutes in any 3 hours) and a 200 ppm ceiling. The currant threshold limit value (TLV) fcr EDC set by the American Conference of Governmental Industrial Hygienists (ACGIH) is 10 ppm TWA. '\ SL 091369 MhR I 3 '33 4 1 Z 434 2 137 PAGE.U03 -1 Marilyn Browning, ZSq. March 0> 1939 page 2 Keller airo Hecxmar Many companies use the ACGIH TLV as a guideline for employee exposure. The National Institute for Occupational Safety and Health (NIOSH) issued a recommended exposure limit (REL) of l ppm TWA and a 2 ppm 15-minute STEL. OSHA proposed and adopted the 1 ppm TWA and 2 ppm STEL. Health Issues -- The scientific literature cited by .OSHA to justify the reduction to 1 ppm consists of two Eastern European studies published in 1954 and 1957 which have sig nificant limitations. For sxample, these studies provide no evidence of the chronic effects from EDO at low levels because they involved high dermal exposure and inadequate reporting. In addition, the fact that the original foreign language versions of these studies are included in the docket suggests that OSHA may not have even reviewed the complete studies. While these older studies and more recent work may support the ACGIH TLV of 10 ppm, it is our position that they do not justify the l ppm PEL and that OSHA's action on EDC is, therefore, arbitrary. Feasibility -- The feasibility of attaining a l ppm PEL and 2 ppm STEL is called into question by the absence of workable methods for cleaning certain vessels, piping, pumps and other process equipment so that worker exposure will be below these limits. Certain loading or unloading operations may also pose feasibility issues. There is apparently no way to achieve 1 ppm using engineering and work-practice controls in these particular situations. Moreover, the use of respirators for these opera tions presents some unique concerns. Airline respirators or Scott air packs may be so disabling as to prevent workers from performing the job at hand. The use of air-purifying respira tors, such as half faca-pieca charcoal canister masks, presents two different concerns. First, we would need to obtain OSHA's concurrence that the use of air-purifying respirators is acceptable-under these circumstances since some Agency guideline# for respirator use may not be met. For example, since l ppm is well below the odor threshold, it may not be physically possible to detect breakthrough. A second concern with the air-purifying respirators is the potential for misuse by workers at facilities where both EDC and vinyl chloride ar produced. More specifically, while the air purifying respira- b* suitable for EDC operations, workers could conceiv ably u* them for certain vinyl chloride operations where th y would not be appropriate. [1AP 13 ' a a SL 091370 412 434 3137 PAGE.004 t Marilyn Browning, Esq. March 9, 1989 Page %. Keller Asn. B. TENTATIVE LITIGATION STRATEGY Vila petition for review We plan to file a petition for review on behalf of s?I on March 10, 1989. For jurisdic tional reasons, we plan to file the petition in the Unit d States Court of Appeals for the District of Columbia circuit. The petition will be accompanied by a cover letter to the clerk noting that similar cases have been consolidated before the Eleventh Circuit under an order of the Judicial Panel on Multidistrict litigation. settlement Discussions with Agency -- We have compl ted a preliminary review of the OSHA docket as it relates to EDC and have had informal discussions with several EDC producers concerning the rule's potential impact. I spoke with Chuck Gordon in the Solicitor's Office at the Department of Labor. He was the lead attorney during the administrative phae Jand X have dealt with him previously. Based on this conversation, further discussion with the Agency to refine the issue ecilt perhaps find a basis for resolution seems a viable alternative. In the coming weeks, I would like to meet with companies interested in this issue to determine whether this matter can be resolved through administrative relief or wh ther our only alternative is a judicial decision invalidating the l ppm PEL and 2 ppm stel. our administrative options would include requesting an Agency interpretation of the rule or seeking an Agency stay of particular provision of the rule. Judicial Stay of epc Provisions -- Wa are not curr ntly planning to seek a judicial stay of the OSKA rule. Rather, as discussed above, we will seek to resolve this issue directly with OSHA and may ask the Agency to stay the application of the rule, at least for certain operations. Z believe that this approach should avoid Neil King's concerns regarding a motion besMre the Eleventh circuit to stay certain provisions of the OSitjfr rule. We fully understand that CMA's participation and support may toe predicated on not seeking a stay of the rule's provisions. While we have no present plans to seek a judicial stay, given the time frames within which we are working, I cannot at this point represent that SPI and its Vinyl Institute will never find it necessary to file a motion for a stay with the Court of Appeals at some future date. Should a motion for a judicial stay appear desirable to SPI in the future, please HhP i 3 ' 33 7 : 51 SL 091371 4 IS 434 2 137 PAGE. Marilyn Browning, Esq. March 9, 1989 Pag 4 Keller > ha assured that wa will not pursue such a motion without prior consultation with you. C. OTHER SUBSTANCES 07 CONCERN As far as I am aware, the only other substance with which $PI may be concerned in this appeal is styrene. The comments filed by the Styrene Information and Research Canter (SIRC), an SPI affiliate, clearly indicated that it was not challenging the rule as a whole and that its concerns were substance-specific. The only remaining issue on styrene is whether manufactures can comply with the new PEL of 50 ppm through the use of respirators for large parts manufactured through the hand layup and sprayup method. A request for an interpretive letter was filed with OSHA in January on this issue and we expect a response within a few weeks, if SIRC or SPI does decide to litigate on styrene, the action will be limited to this single feasibility matter, will not attack the rule as a whole, and should not present any inconsistency of policy problem for CMA. ** I trust that this letter will adequately summariz our discussion and our current plans on addressing the EOC issue. Me hope that CMA will elect to join us in this matter through its own petition for review or by intervening in the SPI case. In either event, I would very much like to file a joint brief. Thank you for your consideration. Cordially yours, Enclosure cc: Larry Thomas Meredith Scheck Robert w. Sherman Hugh Patrick Toner Margaret Rogers Betsy M. Shirley Daniel P. Boyd, Ph.D. Robert d. Luss, Esq. W.C. Holbrook Peter L. de la Cruz IftP 13 *33 SL 091372 rnra\ 4 1 434 2137 PPiGE .