Document xd1jZ3jpnjkrpoXJ24wNyJray

TO:_ FROM: R. W. LAUNDRIE ^4.-Ifr^-r: ;--' : ' r ' ` ' ` GENC 0101 S' .. . RECEIVED ' MAY 2 2 19T5 C, 1 " - 1- --====R iV.-.I-usniJng IN TEE gnxpwms (Ermrf of 0}? United States Octobeb Teem, 1974 No. 7^1185 Firestone Elastics Company, a Division of The Firestone Tire & Rubber Company, ' Union Cabbke Corporation, and The Society op the Plastics Industry, Inc. Petitioners, United States Department op Labor, John T. Dunlop, Secretary, U.S. Department of Labor, John H. Stender, Assistant Secretary op Labor for Occupational Safety and Health, American Federation of Labor and Congress of Industrial Organisations, and Industrial Union Depart ment, AFL-CIO, jRespondents. PETITIONERS* REPLY TO OPPOSITION OF RESPONDENTS May 13,1975 (Counsel on Inside of CoverI Jium cr Byron . Aums Phnukc, Inc., Wjlskxuctok, T>. C. Y - VG j-f Of Counsel; John J. Cassidy, Jr, - Nina G-. Stillman Veddeh, Price, Kaufman & Kammholz 39 South LaSalle Street Chicago, Illinois 606Q3. Telephone: 312/346-5544 Leva, Hawes, Symington, Martin & Opfenhemer 815 Connecticut Ave., N.W. Washington, D. C. 20006 Telephone: 202/29B-S020 Keller Heckman 1150 17th Street, N.W. Washington, D.C. 20036 Telephone: 202/296-2700 Walter B, Connolly, Jr. 1200 Firestone Parkway Akron, Ohio 44317 Telephone: 216/379-7000 Craig Mathews John S. Hoff S15 Connecticut Avenue, N.W. Washington, D. C, 20006 Telephone: 202/298-8020 Attorneys for Petitioner Firestone Plastics Company, a Division of The Firestone Tire & Rudder Company John W. Whittlesey James V. Murray 270 Park Avenue New York, New York 10017 Telephone: 212/551-6797 Attorneys for Petitioner Union Carbide Corporation Jerome H. Heckman 1150 17th Street, N.W. Washington, D. C. 20036 Telephone: 202/296-2700 Attorney for Petitioner Tee Society op The Plastics Industry, Inc. IN THE >xpr?m CUmirt uf tfj? Utiitth States October Term, 1974 hTo. 74-1185 Firestone Plastics Company, a Division of Tee Firestone Tire & Rubber Company, Union Carbide Corporation, and The Society or the Plastics Industry, Inc. Petitioners, Vv United States' Department op Labor, John T. Dunlop, Secretary, U.S. Department op Labor, John H. Stendbr, Assistant Secretary op Labor for Occupational Safety and Health, American Federation op Labor and Congress op Industrial Organizations, and Industrial Union Depart ment, AFL-CIO, . Respondents. PETITIONERS' REPLY TO OPPOSITION OF RESPONDENTS Tb.e Government's cursory Opposition seeks to mini mize the importance of the Federal questions presented by this case and to gloss over the extent to which the decision of the Court below conflicts with numerous other opinions of the 'Circuits, The Opposition's novel view of the legal issues compels this reply. ' 5"-: 7- " ~ tS-' "jl JJ\- 2 1. The applicable scope of review . The refusal of the Court below to apply the test mandated by the Act preseats a major Federal question on. which, lha Circuits are in conSid. The Government apparently contends that there is no conflict between the refusal of the Court below to apply the substantial evidence test mandated by the Act and -the four opinions cited by Petitioners.1 This illusion of uniformity results from treating the deci sions in a novel and unduly generalized manner. Thus the Government asserts that the conflicting cases stand for nothing more -than the proposition that, to the extent the Secretary of Labor "exercises what is more si-in to a legislative judgment, that judgment must be reasoned.''2 _ This proposition is meaningless. Any decision in the field of administrative law could fit so uncritical a for mula. The central point in this proceeding is the Act's express requirement that the Secretary's determina tions must not merely be reasoned but must satisfy the far more stringent test of being supported by "sub stantial evidence in the record considered as a whole." The Court below refused to apply that statutory test. Its decision conflicts with the four opinions cited by Petitioner's, in which the Circuits have explicitly held 1 The conflicting decisions cited by Petitioners are: Florida Teach Growers Association, Inc, v. United States Department of Labor, 489 F.2d 120 (5th Cir. 1974) ; Dry Color Manufacturers* Association, Inc. v. Department of Labor, 486 F.2d 98 (3rd Cir. 1973) ; Associated Industries of Hew York State v. United States Department of Labor, 487 F-2d 342 (2d Cir. 1973) ; and national Looting Contractors Association- v. Brennan, 495 F.2d 1294 (Tth Cir. 1974), cert, denied, 42 L-Ed.2d 801 (1975). 2 Opposition, p. 3. .. that the substantial evidence test applies to legislative judgments/ The Government argues that a "reasoned''.decision by the Secretary is enough. Thus, it apparently acknowledges that the Court below refused to apply the standard of review required by the Act. In ah effort to minimize the extent of the conflict, the Government effectively concedes the existence of a major Federal question. - -- b. The Government does nol defend the failure of lha Court below to examine any of the record evidence that the Secretary's standard is improper. The Government does not mention that -the record contains a substantial amount of evidence opposed to the Secretary's standard, and (that the Court below 3 In Florida Fcacti Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120 at 128, the Filth Circuit ex plicitly held that "although the substantial evidence test is anom alous in the context of informal nilmaking and would not apply were review governed solely by the AFA, Congress applied that test as a result of a legislative tradeoff." In Dry Color Manufac turers3 Assoetaiiojt, Inc. v. Department of Labor, 486 F. 2d 98 at 104, n. S, the court noted -the general rule that an agency action must be reasoned, but pointed out that the Act goes further in re quiring that the action be supported by substantial evidence in the record as a whole. (The Government omits this ease from its discussion of the conflicting opinions. Apparently it concedes the conflict.) In Associated Industries of New York State v. United States Department of Labor, 487 F.2d 342, at 348, Judge Friendly specifically rejected the Government's contention that the sub stantial evidence test applies only to findings of fact; "there can be no question that the `determinations' to which 655(f) applies the substantial evidence test, whatever precisely that may mean in, context, include the overall policy decision to promulgate a rule." Finally, in National Roofing Contractors Association, v. Brennan, 495 F,2d 1294 at 1297, the Seventh Circuit specifically noted and applied the statutory test of substantial evidence. A ifiaaiduartbi 4 failed to consider any of this evidence. Yet in this respect also the opinion below conflicts with the four opinions cited in note 1 above, as well as with Synthetic Organic Chemical Manufacturers Assfn v. Brennan, - 503 F.2d 1155 (3rd Cir. 1974), cert, denied, March 17, 1975, No. 74-789, and Industrial Union Department, AFL-CIO, v. Hodgson, 499 FAd 4G7 (D.C. Cir. 1974), on. which even the Government purports to rely. In, all of those cases, and regardless of what test of judicial review they were applying, the courts examined the reeord. evidence opposed to the Secretary's standard. The failure of the Court below to do so is flatly incon sistent. . The Government chooses to characterize the effort of the Court below as "a painstaking examination of the 4,000-page record." Any objective review of that opinion, however, demonstrates the contrary. The Court's review of the evidence was both cursory and one-sided. Out of the 16 appendix pages which com prise the decision below, at most four pages discuss the record evidence (14a-17a). This is not a satisfactory analysis of a 4,000-page record. And none of the Court's discussion relates to the strong evidence that the Secretary's standard is improper.4 The applicable standard of review is a critically important question. The Goverznent in its Opposition notes (as the industry itself has testified) that vinyl ilI chloride has induced cancer in animals at an exposure * To cite only one example among many, the Court below seems unaware that a Government consultant who advocated the standard subsequently promulgated by the Secretary nevertheless admitted that the ` * Record contains no reliable information with regard to the quantity of vinyl chloride that is hazardous to man.' ' l.A. 3727. SEUC ^*v?0 V. level of 50 ppm. But the Government apparently be lieves that it is unnecessary for the Secretary to sup port by substantial evidence his decision to reduce per missible exposures for workers to 1 ppm--one fiftieth of what even the Government recognizes is a "very lowlevel of exposure. ' '58 *B*ike the Court below, the Govern ment fails to consider the strong evidence produced at the hearing that induction of cancer in animals at 50 ppm does not mean that the substance is carcinogenic to man at any level above 1 ppm.' As the Government's own consultant pointed out, advocates of the Secre tary's standard "have attempted to project the dose response curve below the observed values. Such pro jection is speculative, at best." J.A. 3728. .The sub stantial evidence test was designed to avoid just such speculative and unsupported extrapolations. 5 Opposition, p. 2. 8 Although not In the record of this case, it is significant to note a letter dated liareh 18, 1074, from Dr. Herbert E. Stoking-er, Chief, Toxicology Branch, Division of Laboratories and Criteria Development, National Institute of Occupational Safety and Health, to Dr. Marcus Hey, the Director o National Institute o Occupational Safety and Health (the agency that recommended to OSHA the standard that was finally adopted). Writing as Chairman of the Committee on Threshold Limits of the American Conference of Governmental Industrial Hygienists, Dr. Stdanger characterized NIOSH's (and thus OSHA's) decision as "irration al, " because NIOSH had "fallen into the fallacious trap of believ ing that because the substance produces dire consequences at mas sive concentrations (and in this case probably aided by promoters), such consequences will result from exposure at all eoneentrations. Wrong!" (emphasis and exclamation in original) Petitioners have only recently become aware of the existence of this letter. The letter is set forth in.full as Appendix A hereto. 2* Technological infaaslbility a. By defending a technology-forcing approach, the Government con cede* the existence of another major Federal lUNlhn, The Government apparently contends that the Court below was correct in applying technology-forcing standards, (See Opposition, p. o, n. 2.) By so doing, it confirms the existence of another substantial Federal question. Bor the Act--as well as its legislative history and judicial application--make clear that the Secretary cannot institute standards for immediate application if they are not presently feasible. The Act differs in this respect from the statutes involved in the opinions relied on by the Court below.7 There is no question, as the Government states (Opposition, p. 5), that the Secretary can require feasible engineering practices to comply with a regula tory standard. But this does not justify requiring engineering methods that are not now feasible.8 b. The EjQfcrnnieai's reliance on xtspiraiars la cure ihe inftasxbilliy of ihe standard is CBikciy ilJ-founded* Apparently recognizing that the 1 ppm standard is-- as the Secretary himself concedes--infeasible, the Gov ernment seeks to rely on the respirator provisions of the standard to cure .the problem. But this reliance is r Chrysler Corporation v. Department of Transportation, 472 F.2d 5$, 671-672 (6th Cir. 1972) ; Natural Resources Defense Council, Zno. v. ERA, 489 F.2d 390, 411-412 (5th Cir, 1972), rev'd sub ;., Train v. Natural Resources Defense Council, Inc., 43 TJ.SXJW, 4467 (U.S., April IS, 1975). 3 Nor does the Aci permit a standard to be stated only in terms of "feasibility"; snah a standard is impermissibly vague. See pp. 25-27 of the Petition for Certiorari. The Government does not dis cuss this issue. misplaced both as a matter of fact and as a construction of the Secretary's standard. In the first place, respirators are not a viable method of controlling exposures. As OSHA's own witness testified, "At best, any of these devices are an instru ment of torture." J.A.. 303. Moreover, the use of respirators, even if they were practicable, would not in any way cure the legal flaw resulting from the techno logical infeasibility of the Secretary's standard. Em ployers are obligated to initiate the necessary tech nology in an effort to reduce exposures to 1 ppm; they must provide respirators if they are not immediately successful, but such use does not in any way alleviate the continuing obligation to reach that goal. The availability of respirators, therefore, even if they were practicable, would not excuse employers from undertaking the expensive and futile task of seeking to do what the Secretary himself admits cannot be done in the foreseeable future. ITor would the existence of sat isfactory respirators cure the impermissible vagueness of the Secretary's requirement that, if employers can not reduce exposures to 1 ppm, they must nonetheless do everything "feasible" to reduce exposures to the "lowest practicable level." . .. ' The Government's statement (Opposition, p. 3) that employers can comply with the standard by providing respirators is thus misconceived. Respirators are simply an additional requirement, not a means of satis fying the standard. ' They cannot be used to relieve employers of the continuing obligation to reduce ex posures to 1 ppm. Nor do they provide a defense, either for failing to-reach this goal or for failing to do whatever the Secretary may from time to time deem "feasible." ,sf; 8 Petitioners respectfully submit that their Petition for a Writ of Certiorari should be granted. Respectfully submitted, Walter B. Connolly, Jr. ' 1200 Pirestone Parkway Akron, Ohio 44317 Telephone: 216/379-7000 Craig Mathews JohnS. Hoff 815 Conneeticnt Avenue, fT.W, Washington, D. C. 20006 Telephone: 202/29S-8020 Of Counsel: John <J. Cassidy, Jr. Nh'a G. Stillman Yeddek, Price, Kaufman & Kammholz ' 39 South LaSalle Street Chicago, Illinois 60603 Telephone: 312/346-5514 Attorneys for Petitioner Pirestone Plastics Company, a Division of The Pirestone Tire & Rubber Company John W. Whittlesey James V. Murray 270 Park Avenue Pew York, New York 10017 Telephone: 212/551-6797 Leva, Hawes, Symington, Martin & Oppenheimer 815 Connecticut Avenue, N.W. Washington, D. C. 20006 Telephone: 202/298-8020 Keller & Heckman 115017th Street, N.W. Washington, D. C. 20036 Telephone: 202/296-2700 Attorneys for Petitioner Union Carbide Corporation Jerome H. Heckman 1150 17th Street, N.W. Washington, X). G. 20036 Telephone: 202/296-2700 Attorney for Petitioner The Society op The Plastics Industry, Inc. May 13,1975 GENC 0 V.