Petition — NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC. v. SECRETARY OF LABOR (Nos. 80-1170, 80-1134, 1155)

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J Supreme Court, U.S.

FILED

80-1170 JAN 13° 1981

No. MICHAEL RODAK, JR., CLERK |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC.,

INLAND METALS REFINING COMPANY, INC., KEYSTONE

RESOURCES CORPORATION AND RSR CORPORATION,

Petitioners,

SECRETARY OF LABOR AND OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION,

7 Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

CIRCUIT AND SUPPORTING APPENDIX

EDWARD L. MERRIGAN

6000 Connecticut Avenue, N.W.

Washington, D.C. 20015

656-0210

Attorney for Petitioners NARI, et al.

January, 1981

LL ET AIRES ENOTES RRR OO RR

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTIONS PRESENTED

1. May the Occupational Safety and Health Ad-

ministration (OSHA) give offical notice under the Oc-

cupational Safety and Health Act' that it is planning to

promulgate a 100 ug/m’ maximum lead exposure stan-

dard; conduct hearings thereon, during which all af-

fected industries and OSHA’s own experts seriously

question both the technological and economic feasibility

of that ‘‘100’’ standard; and then suddenly arbitrarily

adopt a far lower SO ug/m’ standard without

establishing in any respect either the technological or

economic feasibilitly of said ‘‘50’’ standard, as required

by Section 6(b)(5) of the Act?

2. May OSHA thereupon lawfully require the entire

national primary lead smelting industry, the entire na-

tional secondary lead smelting industry, and other in-

dustries that necessarily utilize lead in their production

processes to rebuild, at staggering cost, their entire

plants to attempt to meet said 50 ug/m?’ standard thus

adopted, or cease operations — again, without

demonstrating it is technologically or economically feasi-

ble for those industries to comply with the arbitrarily-

prescribed standard?

3. May OSHA then also invidiously and destructive-

ly discriminate against the relatively small, independent

secondary lead smelters, which recycle lead and constant-

ly compete here in the United States and abroad with the

comparatively large, integrated primary lead smelters in

the marketing and pricing of lead products, by compell-

ing the smaller secondary smelters (i) to bear significant-

ly higher compliance costs than the primary smelters,

and (ii) to comply fully with the new, arbitrary 50 ug/m?

standard within five (5) years, while the competing

' Pub.L. 91-596, 29 U.S.C. 651, et seq.

primary smelters are granted ten (/0) years to achieve

that same compliance?

A subsidiary question thus presented is: Does the

court of appeals’ majority opinion — which labeled this

‘discrimination’ issue one of ‘‘the most serious industry

arguments’’? and one that will necessarily place ‘‘the

secondaries ... at some competitive disadvantage with

respect to the primaries’’> — conflict with prior court of

appeals’ decisions which hold that agencies such as

OSHA may not inflict discriminatory compliance re-

quirements on competing industry segments, if such

discrimination threatens to benefit one segment at the

expense of the other (/ndustrial Union Dept., AFL/CIO

v. Hodgson, 499 F.2d 467, 478-81 (1974); International

Harvester Company v. Ruckelshaus, 478 F.2d 615,

636-38 (1973); Portland Cement’ Association v.

Ruckelshaus, 486 F.2d 375, 389-90 (1973))?

4. May OSHA lawfully impose the new 50 ug/m’

lead exposure standard in this case on the entire national

lead recycling industry without first establishing it is

‘‘reasonably necessary’ within the meaning of Section

3(8) of the Occupational Safety and Health Act,‘ and

without providing any cost-benefit analysis to

demonstrate it is both appropriate and necessary to pro-

vide safe, healthful places of employment in that

industry?

5. In addition to the foregoing, may OSHA,

without any specific statutory authority of any kind in

the Occupational Safety and Health Act, constitutionally

> App. to petitioner LIA’s petition for certiorari, pg. 194a.

> Id., at pg. 194a.

* Pub.L. 91-596, §3(8), 29 U.S.C. 652(8)

and lawfully compel all small, independent employers in

the national lead recycling industry subject to the new 50

ug/m’ standard also to establish and maintain extemely

costly, unworkable Medical Removal Protection and

Multiple Physician Review programs, again, without

establishing the feasibility of such requirements for such

employers?

6. Did OSHA deny lead recylers throughout the

United States due process of law by adopting the costly,

‘discriminatory Lead Standard challenged in this case

without effectively affording them clear, advance notice

that (a) they would be confronted with the need to com-

ply with a 50 ug/m’? maximum exposure level rather than

the 100 ug/m? level originally proposed, and (b) they

would also be confronted with the extremely

discriminatory, destructive, nonuniform compliance costs

and compliance timetables described above? Does the

court of appeals’ ruling in this case thus conflict with the

ruling of the Third Circuit in Synthetic Organic

Chemical Manufacturers Association v. Brennan, 506

F.2d 385, 388 (3d Cir., 1974), cert. den. 423 U.S. 830

(1978), and the rulings of other federal courts under

other statutes in Arlington Oil Mills, Inc. v. Knebel,

CCAS, 1976, 543 F.2d 1092, American Iron and Steel

Institute v. Environmental Protection Agency, CCA3,

1977, 568 F.2d 284, 290-292 and American Standard,

Inc. v. United States, C.Cls., 1979, 602 F.2d 256,

267-269?

LIST OF PARTIES

The names of petitioners and intervenors who

sought review of the OSHA Lead Standard challenged in

this case, are set forth in the companion petition for cer-

tiorari filed by Lead Industries Association, Inc., et al.

(No. 80-1134). The respondents are the Secretary of

Labor and the Occupational Safety and Health

Administration.

Petitioner National Association of Recycling In-

dustries, Inc. (NARI) is the trade association for the na-

tion’s metals, paper, textile and rubber recycling in-

dustries. Its membership consists of more than 1,100

firms located throughout the United States, all of which

are engaged in the collection, processing or industrial

utilization of the aforementioned recyclable com-

modities. NARI files the instant petition on behalf of

those of its members who are engaged in the collection,

processing and industrial utilization of recyclable lead

and/or lead-bearing metals.

Petitioners Inland Metals Refining Company, Inc.,

Keystone Resources Corporation and RSR Corporation,

in turn, are members of NARI and each is engaged in

the processing and smelting of recyclable lead and/or

lead-bearing metals.

Petitioners furnish the following additional informa-

tion pursuant to Rule 28.1 of this Court’s Rules: Peti-

tioner Inland Metals Refining Company, Inc. has no

parent or subsidiary corporations to report. It is,

however, affiliated with Lake Calumet Smelting Co., of

Chicago, Illinois.

Petitioner Keystone Resources Corporation has a

parent company, Lambert-Brussels Corp., of New York.

It also has the following subsidiaries: KMC, Inc.; KMC

International, Inc.; Cleveland Electro Metals Corp.; and

Keystone Resources Custom Recovery Corp., of Califor-

nia. This petitioner has no affiliates.

Petitioner RSR Corporation has no parent or af-

filiates to report. It does have the following subsidiaries:

Murph Metals, Inc.; Revere Smelting & Refining Corp.,

of New Jersey; Quemetco, Inc.; and Bestolise Corp. —

all of Dallas, Texas.

TABLE OF CONTENTS

PAGE

sn ha wiacee's O's ae uae base 6 foreword

ee De ain bi wide ¥ as 6/6 08 04 88 foreword

re ae i 6 EL Np alba tive Nees O49 ¥ OAS ]

IEEE ES re ea eee 2

eg aT. ce a bh cide oe ve eo 3

I, MO ee dw veccceseucecees 3

ESS ISS ENTE 12

This Is A Proper Case For Certiorari Because The

Court Of Appeals Has Decided Important Questions

Of Federal Law Under The Occupational Safety

And Health Act Which Have Not Been, But Should

Be, Settled By This Court. Moreover, The Court Of

Appeals’ Decision Is In Conflict With Decisions Of

Other Courts Of Appeals On The Same Matter, And

The Court Of Appeals Has Decided Certain Federal

Questions In This Case In Conflict With This

Court’s Recent Decisions In The Benzene And

ee ed cas bisa 6 bie ded ned eddie ves 12

A. It Is Imperative For This Court To Decide

Whether It Is Permissible Under Section

6(b)(5) Of The Occupational Safety And

Health Act, For OSHA To Give Official

Notice That It Is Planning To Promulgate

A 100 UG/m? Lead Exposure Standard; To

Conduct Hearings Thereon, During Which

All Affected Industries And OSHA’s Own

Experts Seriously Question Both The

Technological And Economic Feasibility Of

That ‘‘100’’ Standard; And Then Suddenly

Arbitrarily Adopt A Far Lower 50 UG/M?

Standard, Without Establishing In Any

Respect Either The Technological Or

Economic Feasibility Of The ‘‘50’’ Stan-

NS SEs cis, as 08 wa UR 6d haa ee Pe ve 14

Table of Contents Continued

It Is Likewise Imperative For This Court

To Deterine Whether It Is Permissible,

Under The Act, For OSHA Arbitrarily To

Threaten To Upset The Entire Competitive

Structure Of The Lead Industry By Impos-

ing Invidiously Discriminatory Compliance

Costs And Compliance Deadlines On One

Of The Two Competing Segments Of That

Industry, When Both Segments Must

Ultimately Comply With The Same Stan-

dard, And The Favored Segment Controls

The Disadvantaged Segment’s Ability To

Pass OSHA Compliance Costs Through To

OS SID 6 bs aes 06 bb so wb coded cers

It Is Also Imperative For This Court To

Determine Whether It Is Permissible,

Under The Occupational Safety And

Health Act, For OSHA To Impose The

New 50 UG/M' Lead Standard On The

Entire Lead Industry, And All The Other

Industries Before This Court, Without

Proving It Is ‘‘Reasonably Necessary,”’

And Without Providing Any Cost-Benefit

Analysis To Demonstrate It Is Both Ap-

propriate And Necessary ................

It Is Equally Important For This Court To

Decide Whether OSHA, Absent Any

Specific Statutory Authority In The Oc-

cupational Safety And Health Act, May

Validly Impose Medical Removal Protec-

tion And Multiple Physicial Review Re-

quirements On All Employers In The

Secondary Lead Industry Irrespective Of

Their Size Or Financial Capabilities.......

PAGE

Table of Contents Continued

PAGE

E. Finally, It Is Vitally Important For This

Court To Determine Whether OSHA

Violated Petitioners’ Constitutional Rights,

Or Their Rights Under The Occupational

Safety And Health Act And The Ad-

ministrative Procedure Act, When It Failed

To Give Them Clear, Advance Notice (A)

That It Would Ultimately Promulgate A 50

UG/M? Standard In This Case, And (B)

That The Secondary Smelters Would Be

Confronted With Extremely

Discriminatory, Nonuniform, Destructive

Compliance Costs And Deadlines.........

PN St EINES 4k eed, as 0 > ee a a

APPENDIX

APPENDIX A — Court of Appeals’ Order of October

24, 1980 denying petitions for rehearing ...........

APPENDIX B — Court of Appeals’ Order of October |

24, 1980 denying petitions for rehearing en banc....

APPENDIX C — Court of Appeals’ Order of October

24, 1980 refusing to stay OSHA Lead Standard for

‘other industries’’ during remand proceedings .....

APPENDIX D — Excerpts From Report Of OSHA’s

Consultant, John Short & Associates, Inc., entitled

‘*Preliminary Technological Feasibility, Cost Of

Compliance And Economic Impact Analysis Of The

Proposed [100 ug/m*] OSHA Standard For Lead’’..

APPENDIX E — Comments Of The President’s

Council On Wage And Price Stability With

Reference To OSHA’s Proposed 100 ug/m?’ Lead

ae ete ot aan we orate e eames é

TABLE OF AUTHORITIES

CASES PAGE

American Federation of Labor v. Brennan, CCA3, 1975,

Se ae ee iso aw sk oo 6 ewkssecs 15

American Iron and Steel Institute v. Environmental Pro-

tection Agency, CCA3, 1977, 568 F.2d 284, 290.... 30

American Iron and Steel Institute v. OSHA, CCA3,

ee re a ie wceness 30

American Petroleum Institute v. OSHA, CCAS, 1978,

581 F.2d 493, 502, aff’d. on other grownds, sub

nom Industrial Union Dept. v. American Petroleum

Institute, 100 S.Ct. 2844 (1980)................0.. 15

American Standard, Inc. v. United States, C.Cls., 1979,

a ce ee i ices cees 30

American Textile Manufacturers Institute, Inc. v. Mar-

Shall, Mae. FO- Bee GN BS 5 ccc cc ccc cece 11, 13

Arlington Oil Mills, Inc. v. Knebel, CCAS, 1976, 543

Pale WO us veedesncececes ee eeeeeececsscsceees 30

Industrial Union Dept., AFL-CIO v. American

Petroleum Institute, 448 U.S. , 100 S.Ct.

ccc ccenees 13, 25

Industrial Union Dept., AFL-CIO v. Hodgson, 162 U.S.

App. D.C. 331, 499 F.2d 467 (1974) ......... 13, 15, 22

International Harvester Co. v. Ruckelshaus, 155 U.S.

App. D.C. 411, 478 F.2d 615, 636-38 (1973) .. 13, 22, 23

Portland Cement Association V. Ruckelshaus, 158 U.S.

App. D.C. 308, 486 F.2d 375, 389-90 (1973)...... 13, 22

RMI v. Secretary of Labor, CCA6, 1979, 594 F.2d 566.. 25

Synthetic Organic Chemical Mfrs. Assn. v. Brennan, 506

F.2d 385, 388 (3d Cir. 1974), cert. den. 423 U.S. 830 -

GFE ca oa ou 0 EES oe ekvcoveeceses

Table of Authorities Continued

CASES: PAGE

Taylor Diving & Salvage Co. v. Dept. of Labor, CCAS,

a, Be 2S f R RRRREIU ren eee 30

Texas Independent Ginners Assn. v. Marshall, CCAS,

Se ee ew.) aye eaewebenes <atews 25

Turner Co. Div. of Olin Corp. v. Secretary of Labor,

eo ye Oe OT eg Se a 15,25

Whirlpool Corp. v. Marshall, 445 U.S. 1, 100 S.Ct. 883,

Ric Ea cha a ewe burs chiens 4% cee 13, 26

STATUTES:

Administrative Procedure Act, 5 U.S.C. §553 .......... 28

Semis ode, 26 U.S.C. SIRT cos cic cack scisesess 3

Occupational Safety & Health Act of 1970, 29 U.S.C.

hs PE 6 ARS IE EEL Ee ee eRE eed coe ek passim

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC.,

INLAND METALS REFINING COMPANY, INC., KEYSTONE

RESOURCES CORPORATION AND RSR CORPORATION,

Petitioners,

SECRETARY OF LABOR AND OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

CIRCUIT AND SUPPORTING APPENDIX

OPINION BELOW

The opinion of the court of appeals is unofficially

reported at 8 O.S.H.C. 1810 (8/28/80), and it also ap-

pears in the appendix to the petition for certiorari of

Lead Industries Association, Inc. in the companion case,

at pages la through 286a.° OSHA’s occupational ex-

‘ posure to lead standard was issued on November 13,

1978 and published at 43 Fed. Reg. 53007-14 (11/14/78),

as corrected by 44 Fed. Reg. 5446-48 (1/26/79) and 44

Fed. Reg. 20680-81 (4/6/79). The preamble and ex-

planatory text issued by OSHA when the lead standard

was published are found at 43 Fed. Reg. 52952-53007

(11/14/78) and pages 54354-509 (11/21/78), and are

cited in this petition by Federal Register page and col-

umn numbers (e.g., 52952/1).

JURISDICTION

The judgment of the court of appeals was rendered

on August. 15, 1980. Timely petitions for rehearing and

reconsideration were filed by _ petitioner National

Association of Recycling Industries, Inc. (NARI) on

August 29, 1980, and, as authorized by the court of ap-

peals, by Lead Industries Association, Inc. (LIA) and

others on September 25, 1980. The court of appeals

issued a series of orders dated October 24, 1980 (see Ap-

pendices A through C hereto), which denied all petitions

for rehearing, as well as a motion for stay of the OSHA

standard which had also been filed.

Subsequent applications to this Court for a stay of

said standard by NARI, the American Iron and Steel In-

stitute, LIA and others were granted on December 8,

1980 with respect to provisions relating to engineering

and work practice controls, compliance plans, new

hygiene facilities, certain tests, multiple physician review

procedures, signs and certain startup dates.

* The majority opinion was written by Chief Judge Wright, with

Circuit Judge Robinson concurring. A dissenting opinion was filed

by Circuit Judge MacKinnon.

This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

STATUTE INVOLVED

The statutory provisions involved in this case are

Sections 3(8), 4(b)(4), 6(b)(5) and 6(f) of the Occupa-

tional Safety and Health Act (the ‘‘Act’’), 29 U.S.C.

§§652(8), 653(b)(4), 655(b)(5) and 655(f). The relevant

text of these provisions is set forth at pages 287a through

290a of the appendix to the petition of LIA, et al. in the

companion case before this Court. Procedural regula-

tions of OSHA under the Act are found at 29 C.F.R.

Part 1911.

STATEMENT OF THE CASE

The court of appeals’ opinion in this case recognizes

from the very outset that lead exists naturally in the

earth’s crust, the atmosphere, and the hydrosphere —

and for thousands of years, human beings have found

lead crucial to the manufacture of a vast number of

essential products.’

At one time in recent history, an industrial airborne

lead exposure limit of 500 ug/m’ was genera'ly accepted

in the United States.* In 1971, the newly-created Occupa-

tional Safety and Health Admiristration (OSHA)

established 200 ug/m’* — ‘the national concensus stan-

dard’ recommended by the American National Standards

Institute — as the permissible industrial lead exposure

level (PEL) under the Occupational Safety and Health

Act of 1970 (the Act).’ In 1975, however, after discus-

’ App. to LIA petition, pg. 8a.

* Id., at pg. 9a. 500 ug/m’ is, of course, 500 micrograms of lead

per cubic meter of air.

*Id., at 9a. The 200 ug/m’ PEL was measured as a time-

weighted average for 8 hours of work.

sions between OSHA and the National Institute for Oc-

cupational Safety and Health (NIOSH), OSHA publish-

ed notice in the Federal Register of its intention to

reduce the prevailing 200 ug/m’ PEL to 100 ug/m’'®

There was no hint in the 1975 notice, published in

the Federal Register as aforesaid, (a) that the PEL ac-

tually thereafter adopted by OSHA would be a far lower

50 ug/m’; or (b) that different segments within the lead

industry would be subjected to radically different,

discriminatory compliance costs and time limits; or (c)

that employers subject to the new standard would also

be required to provide extremely costly, largely un-

workable Medical Removal Protection (MRP) and Multi-

ple Physician Review (MPR) programs for their

employees, regardless of each employer’s particular size

or financial capabilities.'' Instead, OSHA initially pro-

posed in 1975 such supplemental provisions as en-

vironmental monitoring, medical surveillance, employee

training and other similar, relatively resonable protective

measures. "’

Section 6(b)(5) of the Occupational Safety and

Health Act, entitled ‘‘ Standards,’’ contains a Congres-

sional mandate that the Secretary of Labor shall pro-

mulgate standards which are ‘‘feasible,’’ and _ that

‘*feasibility’’ must be based ‘‘on the best available

evidence.’’'’ In this case, however, since OSHA original-

ly contemplated and published a proposed /00 ug/m’

standard only, practically all evidence adduced at the

'° See 40 F.R. 45934 (1975).

'' See 40 F.R. 45934 (1975).

'* 29 U.S.C. §655(b) (5).

subsequent hearings, as well as the feasibility studies

made for OSHA by its own outside consultants, dealt

exclusively with the feasibility of said ‘‘100’’ standard,

not the 50 ug/m? standard ultimetely arbitrarily adopted

by OSHA at the end of the administrative proceedings. '

Thus, insofar as ‘feasibility’ of the 50 ug/m? standard is

concerned, the court of appeals’ majority opinion con-

cedes OSHA’s findings are mere ‘‘highly speculative

guesstimates,’’ based entirely on evidence dealing with

the far higher /00 ug/m?’ standard originally proposed in

1975.'°

Judge MacKinnon’s dissenting opinion is more

direct and to the point. It states:'®

‘‘The OSH Act, 29 U.S.C. §655(b)(5) (1976), re-

quires that the standards promulgated by the agency

be based upon the ‘best available evidence.’ It is

conceded by OSHA and the majority that very little

record evidence exists for the technological feasibili-

ty of the 50 ug/m’ air-lead level, and no evidence

exists to support the economic feasibility of that

level. OSHA _ never even introduced its own

witnesses to testify on these issues; instead it con-

centrated on the feasibility of the proposed 100

ug/m? level... .”’

Thus, contrary to the clear-cut requirements of Sec-

tion 6(b)(5) of the Act, there is no sustainable evidence

in the record in this case to establish that the 50 ug/m’

standard, finally arbitrarily adopted byOSHA, is feasible

for secondary smelters of recyclable lead. This alone is

sufficient, petitioners respectfully submit, to vitiate the

'* App. to LIA petition, pgs. 39a, ftnt. 32; 169a; 170a.

'S Id., at 170a.

'© Id., at 27la.

50 ug/m’ standard under the Act as it applies to

recyclers.

However, the fundamental illegality of the ‘‘50’’

standard for secondary lead smelters is magnified and

aggravated almost beyond belief by the following addi-

tional facts:

1. Technological Infeasibility Of The 100 ug/m?

Standard — The evidence of record in this case actually

demonstrates that even the higher /00 ug/m' standard

originally proposed by OSHA may likewise be clearly

technologically infeasible for them.'’ Secondary smelters

handle ‘‘pure lead as compared to what the primary

smelter handles.’’'* Experts thus testified at the hearings

in this case that ‘‘engineering controls alone might be in-

_ capable of achieving /00 ug/m? in two [of the secondary

smelters’] operations — slag handling and battery break-

ing.’’'® Other experts ‘‘expressed doubt whether conven-

tional controls could reduce exposure to 100 ug/m? in

the secondary smelters’ scrap handling operations.*® In-

deed, the majority opinion of the court of appeals con-

cedes that it might also be impossible for secondary

smelters to maintain even a /00 ug/m?’ PEL in blast fur-

nace areas without the use of respirators — this, Judge

Wright wrote, is ‘‘very speculative.’’?' Finally, in the

record before this Court, ‘‘OSHA virtually concedes

that maintenance workers in secondary smelters will

have to continue to wear respirators.’’”?

'’ Id., at 18la-196a.

'" Id., at 182a.

'? Id., at 183a; 186a; 188a.

” Id., at 186a, 187a.

*"' Id., at 187a, 188a.

2 Id., at 190a.

2. Economic Infeasibility Of The 100 ug/m’ Stan-

dard — In order to comply with even the higher 100

ug/m? PEL without respirators, all secondary smelters,

most of which are small and presently operate with

‘relatively little capital investment,’’?? would necessarily

have to rebuild their plants from the ground up —

assuming, of course, conversion to something like Den-

mark’s ‘‘Bergsoe Process’’ (upon which the court of ap-

peals relied so heavily in its majority opinion) is

ultimately legitimately proved to be available, attainable

and effective.** Such complete rebuilding is obviously ex-

pensive.**> The cost estimates in the record before the

Court range between $90.6 million and $630 million,

plus additional annual costs of at least $9.8 million,

simply to meet, if possible, the higher 100 ug/m? stan-

dard originally proposed by OSHA.’* And, as the court

of appeals’ majority opinion concedes:?”’

“OSHA confessed difficulty in adjusting this

estimate to the problem of meeting the 50 ug/m’

standard... .’’

OSHA’s experts estimated there are between 40 and

140 small, independent secondary smelters in the United

States.** They thereupon warned OSHA that crushing re-

quirements such as those described above could force all,

or certainly most, of the secondary smelters to close their

plants within a period of 5 to 7 years (see Appendix D

hereto).”°

2. Id., at 191a.

4 Id., at 184a.

> Id., at 184a.

6 Id., at 19la, 192a.

7 Id., at 19la.

8 Id., at 182a.

*% Appendix D.

Thus, the record in this case also raises grave doubts

about the economic feasibility of even OSHA’s original

100 ug/m PEL insofar as secondary smelters of lead are

concerned.

The unbelieveable incongruities of this case insofar

as secondary smelters of recycled lead are concerned un-

fortunately do not end there. OSHA’s consultants

reported to OSHA that ‘‘the domestic secondary

smelting industry is one of the most successful recycling

operations in the world,’’ and that the recycled lead it

produces ‘‘has become a perfect substitute for primary

lead.’’"*° Thus, both OSHA and the court of appeals

found that the small, independent secondary lead

smelters constantly compete with the large, integrated

primary lead smelters in the marketing and sale of lead.’!

The large, primary smelters, however, control the pricing

structure for the entire industry, so secondary smelters

cannot raise their prices to pass OSHA compliance costs

along to their customers, unless the primary smelters

first raise their prices sufficiently to enable the com-

peting secondary smelters to pass along such costs.°?

OSHA’s consultants therefore advised OSHA that,

since the primary smelters control the entire industry’s

pricing structure, the small, competing secondary

smelters might be effectively: precluded from passing

OSHA compliance costs through to customers — and

this also could soon force the bulk of the secondary

smelters to close their plants.*? This, the consultants

7 i

*' App. to LIA petition, pg. 193a.

2 Id., at 193a.

*’ Appendix D; App. to LIA petition, at 193a.

warned, would eliminate substantial competition in the

lead industry and cause monopolistic concentrations.**

OSHA not only rejected its consultants’ admoni-

tions — it arbitrarily went further and actually imposed

both (a) grossly discriminatory, higher compliance costs,

and (b) a grossly discriminatory, shorter compliance

deadline on the secondary smelters. Thus, OSHA

ordered the secondary smelters fully to comply with the

impossible 50 ug/m? standard within five (5) years, while

it simultaneously favored the competing, larger primary

smelters with a fen (10) year compliance deadline and

significantly lower compliance costs.°*°

Faced with this unfathomable record, the court of

appeals necessarily concluded:*®

‘*We think it possible that the secondaries will re-

main at some competitive disadvantage with respect

to the primaries.”’

Nevertheless, the lower court’s majority opinion

refused to rectify this impossible competitive situation in

line with the governing authorities, infra, by groundlessly

asserting:*’

‘(Tjhis disadvantage, if it does exist, will not

pose a fatal threat to the secondary smelting in-

dustry.”’

That conclusion, of course, is diametrically at odds

with the position taken by the President’s Council on

Wage and Price Stability before OSHA in this case. The

4 Appendix D.

’ App. to LIA petition, at 194a-196a.

**Id., at 196a.

* oe

Council advised OSHA that it opposed the proposed

reduction of the existing 200 ug/m’ lead standard to 100

ug/m’ (Appendix E hereto). It urged OSHA to consider

two alternatives: (A) Rigid enforcement of the existing

200 ug/m’ standard, or (b) Adoption of NIOSH’s

recommended /50 ug/m’ standard (Appendix E). The

Council then stated:**

**Anticompetitive effects of the proposed regula-

tion are potentially major in the secondary smelting

and battery manufacturing industries. These two in-

dustries are characterized by the existence of a few

very large firms and numerous small firms... .

*‘The secondary lead smelting industry is involved

in producing refined lead from reclaimed scrap

materials. This secondary lead is a perfect substitute

for refined lead from primary smelters. Secondary

lead accounts for 50% of the total production of

lead, and it is produced by four large firms and

numerous small firms. Easier entry into this area of

the lead production industry exerts pressure on what

otherwise could be an oligopolistic industry. Unfor-

tunately, the proposed lead standard, with its high

capital costs of compliance (that do not vary in pro-

portion to capacity) may force many of the smaller

firms to close. ... [SJuch a reduction in the com-

petitive nature of the market may impose other

costs on society which should be considered when

costs and benefits of proposed regulations are

weighed.’’ [Italics supplied.]

Sadly, however, OSHA failed to make any cost-

benefit analysis of either the 50 ug/m? or 100 ug/m? lead

standards for the secondary smelting industry.

Instead, OSHA added insult to injury insofar as the

secondary smelters are concerned by also imposing addi-

‘* Appendix E hereto.

tional extremely costly, entirely unworkable Medical

Removal Protection (MRP) and Multiple Physician

Review (MPR) requirements on these small firms — re-

quirements which likewise ‘‘do not vary in proportion to

capacity,’?> and which again invidiously discriminate

against the secondary smelters by forcing them to bear

higher estimated MRP costs than those their competitors

in the primary smelting industry will have to shoulder.

And, as the court of appeals recognized in a footnote to

its majority opinion:””

‘“fOSHA concedes that removal (MRP) may pose

a somewhat greater problem for small employers

who have less flexibility in creating transfer oppor-

tunities. ...°”

Again, however, the court of appeals did nothing to

require OSHA at least ‘‘to vary’’ these requirements ‘‘in

proportion to capacity,’’ as the President’s Council urg-

ed during the administrative proceedings before OSHA.

It should be noted, of course, that the MRP pro-

gram mandated by OSHA for all small employers in the

secondary lead smelting industry is substantially more

onerous than the MRP requirements OSHA prescribed

in the ‘‘cotton dust’’ standard involved in American

Textile Manufacturers Institute, Inc. v. Marshall, Docket

Nos. 79-1429, 1583, wherein this Court recently granted

certiorari. *°

’* App. to LIA petition, at 237a, ftnt. 166.

‘©The majority opinion of the court of appeals in this case

recognizes that the MRP provision in OSHA’s lead standard is very

different from the MRP program involved in the ‘‘cotton dust’’

case and is ‘‘relatively without precedent.’’ See Maj. Op. at 12a;

22a, ftnt. 15; 66a, ftnt. 63.

ARGUMENT

THIS IS A PROPER CASE FOR CERTIORARI

BECAUSE THE COURT OF APPEALS HAS DECID-

ED IMPORTANT QUESTIONS OF FEDERAL LAW

UNDER THE OCCUPATIONAL SAFETY AND

HEALTH ACT WHICH HAVE NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT.

MOREOVER, THE COURT OF APPEALS’ DECI-

SION IS IN CONFLICT WITH DECISIONS OF

OTHER COURTS OF APPEALS ON THE SAME

MATTER, AND THE COURT OF APPEALS HAS

DECIDED CERTAIN FEDERAL QUESTIONS IN

THIS CASE IN CONFLICT WITH THIS COURT’S

RECENT DECISIONS IN THE BENZENE AND

WHIRLPOOL CASES

The court of appeals’ majority opinion recognizes

from the very outset that this case presents ‘‘a number

of important questions on appeal [which] are very

close,’’ and that Judge MacKinnon’s dissenting opinion

raises ‘‘serious questions about a number of aspects of

[OSHA’s] rule-making”’’ in this case.*' The dissenting

opinion, in turn, states:*?

‘‘This case should be . . . remanded: (1) to cor-

rect the improper use of consultants, (2)to issue a

proper Notice of Rulemaking on the 50 ug/m? stan-

dard and conduct a proper hearing thereon with

right of cross-examination, (3) to produce substan-

tial evidence, subject to cross-examination, that pro-

perly supports the feasibility of the standard ...,

(4) to strike the medical removal protection system

because it directly violates the prohibition of the Act

*' App. to LIA petition, at 7a, ftnt. 6.

*? Id., at 247a.

against ‘superseding] or in any manner affect[ing]

any workmen’s compensation law,’ (5) to hold fur-

ther hearings on the feasibility of the standard im-

posed because it is not presently supported by

substantial evidence and violates the holding in the

recent Benzene Case, /ndustrial Union Department,

AFL-CIO v. American Petroleum Institute,

U.S. , 48 U.S.L.W. 5022 (July 2, 1980) by

relying on impermissible presumptions, (6) to

employ proper methods as outlined hereafter in

determining the feasibility of the lead standard, and

(7) to make a cost-benefit analysis to determine if

the evidence supports a finding of significant

benefits derived from economic feasibility.”’

Plainly, as the dissenting opinion suggests, this case

involves vitally important questions of federal law under

the Occupational Safety and Health Act which have not

been, but must be, settled by this Court. The court of

appeals’ majority opinion also conflicts with this Court’s

recent decisions in the Benzene Case (/ndustrial Union

Department, AFL-CIO v. American Petroleum Institute,

448 US. , 100 S.Ct. 2844 (1980)) and in the

Whirlpool Case (Whirlpool Corp. v. Marshall, 445 U.S.

1, 100 S.Ct. 883, 894 (1980)); it raises, in different, more

compelling context, other questions which are now

before this Court in American Textile Mfrs. Institute v.

Marshall, Nos. 79-1429 and 1583; and its approval of

OSHA’s grossly discriminatory compliance treatment of

competing segments of the lead industry conflicts with

and violates all prior federal precedents under the Oc-

cupational Safety and Health Act and related en-

vironmental statutes (/ndustrial Union Dept., AFL-CIO

v. Hodgson, 499 F.2d 467, 478-81; Jnternational

Harvester Co. v. Ruckelshaus, 478 F.2d 615, 636-638;

and Portland Cement Assn. v. Ruckelshaus, 486 F.2d

375, 389-90).

Indeed, when this case was recently before this

Court in connection with petitioners’ application for stay

of the OSHA standard (National Association of Recycl-

ing Industries, Inc. v. Secretary of Labor, A-404),

Federal Respondents appeared and generally conceded

that this case does raise important questions under the

Occupational Safety and Health Act which must be settl-

ed by this Court. Shortly thereafter, of course, this

Court did grant-a partial stay of the challenged standard

pending completion of these certiorari proceedings.

A. It Is Imperative For This Court To Decide

Whether It Is Permissible Under Section 6(b)(5)

Of The Occupational Safety And Health Act,

For OSHA To Give Official Notice That It Is

Planning To Promulgate A 100 Ug/m’ Lead

Exposure Standard: To Conduct Hearings

Thereon, During Which All Affected Industries

And OSHA’s Own Experts Seriously Question

Both The Technological And Economic

Feasibility Of That ‘‘100’’ Standard; And Then

Suddenly Arbitrarily Adopt A Far Lower 50

Ug/m’ Standard, Without Establishing In Any

Respect Either The Technological Or Economic

Feasibility Of Said ‘‘50’’ Standard

Section 6(b)(5) of the Occupational Safety and

Health Act, 29 U.S.C. 655(b)(5), reads as follows:

‘*(5) The Secretary, in promulgating standards

dealing with toxic materials or harmful physical

agents ..., shall set the standard which most ade-

quately assures, to the extent feasible, on the basis

of the best available evidence, that no employee will

suffer material impairment of health or functional

capacity .... In addition to the attainment of the

highest degree of health and safety protection for

the employee, other considerations shall be ... the

feasibility of the standards. . . .”’ {Italics supplied.]

This Court has never construed the Congressional

mandate for the promulgation of only ‘‘feasible’’ OSHA

standards contained in this section of the Act. Until the

court of appeals rendered its majority opinion in this

case, however, other courts of appeals read Section

6(b)(5) to require that each OSHA standard, when pro-

mulgated, must be based on substantial evidence which

establishes that the standard is both technologically and

economically feasible; that ii is not ‘‘prohibitively expen-

sive,’’ and that it will not result in mass closures of in-

dustrial facilities or ‘‘adversely affect the competitive

structure or posture of an industry’? (American Federa-

tion of Labor v. Brennan, CCA3, 1975, 530 F.2d 109,

120-123; Industrial Union Dept., AFL-CIO v. Hodgson,

162 U.S. App. D.C. 331, 499 F.2d 467, 477-478 (1974);

Turner Co. Div. of Olin Corp. v. Secretary of Labor,

CCA7, 1977, 561 F.2d 82, 83; American Petroleum In-

stitute v. OSHA, CCAS, 1978, 581 F.2d 493, 502, aff'd.

on other grounds, sub nom Industrial Union Dept. v.

American Petroleum Institute, 100 S.Ct. 2844 (1980).

In the case at bar, OSHA originally proposed to

establish a new lead exposure standard of /00 ug/m'’.

The evidence thereafter presented by the parties, OSHA

included, was restricted to the proposed ‘‘100’’ standard

— and that evidence raised serious questions about both

the technological and economic feasibility of even this

**100”’ standard for secondary lead smelters and other

industry groups. At the end of the administrative pro-

ceedings, however, OSHA arbitrarily promulgated a far

more stringent 50 ug/m’ standard, without bothering to

produce any substantial evidence to support either the

technological or economic feasibility of that lower ex-

posure limit for secondary lead smelters or any of the

other major industries involved. Thus, as Judge MacKin-

non emphasizes in his dissenting opinion in this case:*’

‘‘The majority permits the agency to utilize as

supporting evidence of feasibility the evidence in-

troduced to support the proposed PEL at 100 ug/m’

that is far different from the one actually pro-

mulgated at 50 ug/m’....

‘‘That is in substance the state of the public

record in this case. OSHA has not introduced

evidence as to the feasibility of a 50 ug/m’ PEL,

and its neglect to introduce any evidence in support

of a standard at that level cannot serve as a

substitute for the necessary’ substantial

evidence. . . .’’[Italics supplied.].

Here, therefore, the court of appeals, by sharply

divided opinion, has suddenly licensed OSHA for the

first time to promulgate a completely arbitrary standard

under Section 6 of the Act without producing any

substantial evidence of either technological or economic

feasibility to support that standard, as required by Sec-

tion 6(b)(5) and the earlier court of appeals decisions

cited hereinabove. **

Patently, this Court must review and reverse the

court of appeals’ majority holding in this respect or the

Congressional mandate contained in Section 6(b)(5) of

the Act, whereby OSHA is specifically restricted to the

promulgation of ‘‘feasible’’ standards — the ‘‘feasibili-

ty’? of which must be based on substantial evidence —

will have been effectively deleted from the statute. By

merely amassing a voluminous, irrelevant record with

*} Id., at 272a; 274a.

*“* See App. to LIA petition, at 247a-248a; 25Sa.

reference to any proposed standard, OSHA will be free

arbitrarily to adopt far more stringent standards without

any proof of feasibility at all.

Certiorari is particularly compelling here because the

evidence produced by OSHA in this case also —

(i) raises, at the very least, grave doubts about both

the technological and economic feasibility of even the

original proposed /00 mg/m’ standard for the entire

secondary lead smelting industry;

(ii) establishes that, in order to attempt to reach

even that orginial /00 ug/m? standard, the entire secon-

dary lead smelting industry will have to rebuild its plants

in pursuit of a technological solution not presently

available or provemy and clearly that dubious undertak-

ing will be ‘‘prohibitively expensive’’ for all the relatively

small, independent firms that comprise the bulk of the

industry;*°

(iii) these drastic, prohibitive requirements thus

threaten ‘‘mass closures of industrial facilities’? and loss

of employment for thousands of employees in the secon-

dary lead smelting industry; and

(iv) as demonstrated hereinabove, the OSHA stan-

dard is likewise devastatingly infeasible under Section

‘* The record indicates it would cost the secondary smelters bet-

ween $90.6 million and $630 million [in 1978 dollars] to rebuild

their plants (191a, 192a). OSHA’s consultants, however, produced

evidence which established that the present ‘‘average book value’’

of the secondary smelter plants is in only the $50,000 — $400,000

range (Appendix D hereto). Thus, OSHA’s experts concluded that

these small firms could not possibly raise the capital required to

completely rebuild, and thus they would have to exit the industry en

masse (Appendix D hereto).

6(b)(5), whether it be set at 100 ug/m’ or 50 ug/m’,

because it also destructively affects the competitive struc-

ture or posture of the lead industry by saddling the

small, independent secondary smelters with both higher

compliance costs and a far shorter compliance deadline

than it imposes on their industry competitors, the

primary smelters.

B. It Is Likewise Imperative For This Court To

Determine Whether It Is Permissible, Under

The Act, For OSHA Arbitrarily To Threaten

To Upset The Entire Competitive Structure Of

The Lead Industry By Imposing Invidiously

Discriminatory Compliance Costs And Com-

pliance Deadlines On One Of The Two Com-

peting Segments Of That Industry, When Both

Segments Must Ultimately Comply With The

Same Standard, And The Favored Segment

Controls The Disadvantaged Segment’s Ability

To Pass OSHA Compliance Costs Through To

Its Customers.

The court of appeals’ majority opinion, which was

seemingly determined to sustain whatever OSHA did in

this case regardless of the consequences, nevertheless

states:*°

‘‘Perhaps the most serious industry argument,

that of the National Association of Recycling In-

dustries (NARI), is that the phase-in schedule for

the secondary smelters places them at a competitive

disadvantage with the primary smelters.’’

The record before the Court establishes without

contradiction from any source that secondary lead

‘* App. to LIA petition, at 194a.

smelters and primary lead smelters strenuously compete

throughout the domestic and international marketplaces

for lead, and in its preamble to the 50 ug/m? standard,

OSHA concedes:*’

‘‘Secondary smelters produce much of the lead

used in the United States....

‘*fSJecondary producers have little control over

prices, even in the short run, essentially following

the market.... They will be able to shift com-

pliance costs forward onto product prices only if

primary producers raise prices.’’{\talics supplied.]

Provided by its own feasibility consultants with this

crystal clear picture of the competitive relationship which

exists between the primary and secondary smelters,

OSHA nevertheless proceeded to deal with that relation-

ship like the proverbial ‘‘bull in a china shop.’’ The

standard it promulgated for both segments invidiously

discriminates against the secondary smelters and in favor

of the primary smelters in three (3) crucial respects:

(1) Compliance Costs Required To Meet The 100

ug/m’> Standard Only — In order to meet the same 100

ug/m? standard only, OSHA imposes the following ex-

tremely discriminatory ‘‘estimated compliance costs’’ on

the competing industry segments: Compliance Costs Per

Pound Of Product on the secondary smelters of $0.0/3;

Compliance Costs Per Pound Of Product on the com-

peting primary smelters of only $0.004-$0.006 (43 F.R.

52982,3).

” Appendix D hereto; 43 F.R. 54498; 43 F.R. 52979-84.

In other words, the compliance costs per pound in-

flicted on the secondary smelters to meet the same in-

ferim standard only are more than twice the compliance

costs per pound imposed on the competing primary

smelters.

OSHA has not even attempted to compute the addi-

tional compliance costs required to meet the 50 ug/m?

standard, because it has developed no evidence upon

which that computation can be based. And, of course,

both the secondary and primary smelters verily believe

that OSHA’s aforesaid ‘‘estimates’’ are only a tiny frac-

tion of the capital costs which would actually have to be

expended to rebuild all the lead production plants in the

United States simply to meet the interim 100 ug/m:?

standard only.**

** App. to LIA petition, at 192a.

(2) Compliance Deadlines — The OSHA standard

thereupon grants the primary smelters, which control the

entire industry’s pricing structure, ten (/0) years to com-

ply with the 50 ug/m’ standard, while it compels the

competing secondary smelters to comply with that same

standard within five (5) years.*°

The disastrous anticompetitive effect of this

discriminatory compliance schedule is manifest. Primary

producers, which OSHA concedes control market prices

and which do not have to expend their full compliance

costs for ten (10) years — and even then they are

favored with substantially lower compliance costs — can

simply refrain from raising prices sufficiently to enable

their secondary producer competitors to pass their higher

compliance costs along to their customers. The result

would be complete destruction of the recycling segment

of the lead industry because OSHA concedes:*°

‘*They will be able to shift compliance costs for-

ward onto product prices only if primary producers

raise prices.”’

Moreover, since the primary smelters’ estimated

compliance costs per pound of product to reach the 100

ug/m?’ standard are /ess than half the compliance costs

imposed by OSHA on the secondary smelters, the

primaries could actually increase prices to the extent

necessary to absorb their own costs and still make it im-

possible for the secondaries to pass along their full com-

pliance costs to customers.

** See 43 F.R. 52983, 53008.

°° 43 F.R. 52979-84.

(3) Compliance Costs Required To Operate MRP

Programs — Finally, the OSHA standard imposes

significantly higher Medical Removal Protection charges

on the secondary smelters than those imposed on the

primaries.°' Indeed, OSHA estimates the secondary

smelters will bear MRP costs seven (7) times higher than

the primary smelters at the outset, and 60% higher each

year thereafter.

The court of appeals thus correctly concluded that

‘*the secondaries will remain at some competitive disad-

vantage with respect to the primaries.’’*? But, shocking-

ly, completely contrary to conclusions reached by

OSHA’s own consultants and without anything of

substance to support its ruling, the court of appeals

licensed OSHA to impose these grossly discriminatory,

totally destructive requirements on the small, indepen-

dent secondary smelters, stating that hopefully —°*?

‘“‘this disadvantage ... will not pose a fatal threat

to the secondary smelting industry.’’ [Italics sup-

plied. ]

The court of appeals’ decision in this regard is in

direct conflict with all prior court of appeals rulings in

cases where OSHA and the Environmental Protection

Agency have unfairly sought to impose discriminatory

compliance costs and requirements on competing in-

dustry segments (/ndustrial Union Dept. v. Hodgson,

162 U.S. App. D.C. 331, 499 F.2d 467, 478 (1974); In-

ternational Harvester Co. v. Ruckelshaus, 155 U.S. App.

D.C. 411. 478 F.2d 615, 636-638 (1973); Portland Ce-

‘' 43 F.R. 54459-60.

* App. to LIA petition, at 196a.

ment Association v. Ruckelshaus, 158 U.S. App. D.C.

308, 486 F.2d 375, 389-90 (1973)).

Thus, in Hodgson, supra, the court of appeals

remanded the challenged OSHA asbestos standard to the

Secretary of Labor with directives that the standard’s

economic impact on industrial competitors be re-weighed

and that its discriminatory effects be eliminated (see 499

F.2d 481).

Similarly, in /nternational Harvester, supra, EPA’s

automobile emission standards under the Clean Air Act

were remanded to EPA because, as written, they might

unfairly interfere with the competitive balance among

competing manufacturers (478 F.2d 636-638).

Thus, it is truly imperative and critically important

for this Court to settle this important question, and to

resolve this obvious conflict in court of appeals’ deci-

sions. Essentially, we urge this Court to rule that, under

Section 6(b)(5) of the Occupational Safety and Health

Act, an OSHA standard is not ‘‘feasible’’ or sustainable

if it invidiously and unfairly discriminates against one

competing industry segment in favor of another,

especially in cases where the favored industry segment

already controls the industry’s pricing structure and thus

possesses the power to prevent disadvantaged com-

petitors from passing their OSHA compliance costs

along to their customers.

C. It Is Also Imperative For This Court To Deter-

mine Whether It Is Permissible, Under The Oc-

cupational Safety And Health Act, For OSHA

To Impose The New 50 Ug/m? Lead Standard

On The Entire Lead Industry, And All The

Other Industries Before This Court, Without

Proving It Is ‘‘Reasonably Necessary’? And

Without Providing Any Cost-Benefit Analysis

To Demonstrate It Is Both Appropriate And

Necessary

Petitioners submit this Court should also review

and set aside OSHA’s 50 ug/m? standard because —

(i) OSHA did not prove, through substantial

evidence, that significant, serious illnesses clearly

resulted from industrial exposure to lead at the pre-

existing OSHA standard of 200 ug/m’, or that such il-

Inesses will not occur after hundreds of millions of

dollars have been spent in a speculative attempt to

reduce industrial exposure only to OSHA’s new 50

ug/m?> PEL.**

(ii) OSHA thus has failed to prove that said 50

ug/m’ standard is ‘‘reasonably necessary’’ within the

meaning of Section 3(8) of the Act, 29 U.S.C. 652(8),

and this Court’s recent decision in the Benzene Case (/n-

“ The Court must bear in mind that, as the court of appeals

found, ‘‘Lead exists naturally in the earth’s crust, the atmosphere,

and the hydrosphere’’ (App., 8a). Thus, no matter how low in-

dustrial exposure to lead is reduced, employees will still be exposed

to significant amounts of lead, depending entirely on each

employee’s environment. Also, the court of appeals acknowledges

that there is no evidence in this case of ‘‘the actual incidence of

significant health effects at the old and new PELS’’ (App. 110a,

11 1a).

dustrial Union Dept. v. American Petroleum Institute,

100 S.Ct. 2844 (1980)).

(iii) OSHA has likewise failed adequately to prove

why it will not still be ‘‘appropriate,’’ within the mean-

ing of Section 3(8) of the Act, for employers to continue

to control industrial exposure to lead even below 50

ug/m’ through the continued use of modern respirators,

since OSHA and the court of appeals simultaneously

concede it will still be ‘‘necessary’’ for secondary

smelters, for example, to continue to use respirators in

many of their operations, even if they do speculatively

rebuild their plants as OSHA proposes.** This clearly

feasible solution was vigorously recommended by the

President’s Council on Wage and Price Stability (Appen-

dix E hereto).

(iv) And, OSHA has also failed to supply a cost-

benefit analysis to demonstrate that the benefits to be

produced by its new standard bear a reasonable relation-

ship to the costs imposed by that standard (see Texas In-

dependent Ginners Assn. v. Marshall, CCAS, 1980, 630

F.2d 398, 411; American Petroleum Institute v. OSHA,

supra, at 581 F.2d 503; RMI v. Secretary of Labor,

CCA6, 1979, 594 F.2d 566; Turner Co. v. Secretary of

Labor, CCA7, 1977, 561 F.2d 82). The Court’s attention

is also directed to Mr. Justice Powell’s concurring opi-

nion in /ndustrial Union Dept. v. American Petroleum

Institute, at 100 S.Ct. 2875 (1980). This failure by

OSHA was strenuously criticized by the President’s

Council on Wage and Price Stability (Appendix E

hereto).

** See App. to LIA petition, at 186a-190a.

D. It Is Equally Important For This Court To

Decide Whether OSHA, Absent Any Specific

Statutory Authority In The Occupational Safety

And Health Act, May Validly Impose Medical

Removal Protection And Multiple Physician

Review Requirements On All Employers In The

Secondary Lead Industry, Irrespective Of Their

Size Or Financial Capabilities

OSHA has no specific statutory authority in the Oc-

cupational Safety and Health Act to impose extremely

costly Medical Removal Protection wage guarantee pro-

grams, or Multiple Physician Review requiremens, on

any employer — but certainly, OSHA may not impose

such programs on ail/ employers, irrespective of their size

or financial capabilities — i.e., without determining

whether such ‘‘standards’’ are feasible for them under

Section 6(b)(5) of the Act.

As Judge MacKinnon states in his dissenting opi-

nion, this is ‘‘the most far reaching removal system of

any OSHA standard ever reviewed.’’*® It flies in the face

of Section 4(b)(4) of the Occupational Safety and Health

Act itself,°’ which precludes OSHA from superseding or

in any manner affecting any workmen’s compensation

law, or from enlarging or affecting in any other manner

the common law or statutory rights, duties and liabilities

of employers with respect to injuries or diseases arising

out of their employees’ employment.

It is also contrary to this Court’s recent interpreta-

tion of the Occupational Safety and Health Act in

Whirlpool Corporation v. Marshall, 445 U.S. 1, 100

29 U.S.C. 653(b)(4).

S.Ct. 883, 894 (1980), where this Court held that

‘““Congress very clearly meant to reject a law uncondi-

tionally imposing upon employers an obligation to con-

tinue to pay their employees their regular pay checks

when they absented themselves from work for reasons of

safety.”’

Petitioners NARI, et al. argue, in this case, that

even if OSHA did have the statutory right to impose

MRP and MPR programs in the general sense, which

petitioners strenuously deny, Section 6(b)(5) of the Act

nevertheless requires OSHA to prove the ‘‘feasibility’’ of

such requirements for small, independent concerns such

as those which make up the bulk of the secondary

smelting industry.**

E. Finally, It Is Vitally Important For This Court

To Determine Whether OSHA Violated Peti-

tioners’ Constitutional Rights, Or Their Rights

Under The Occupational Safety And Health

Act And The Administrative Procedure Act,

When It Failed To Give Them Clear, Advance

Notice (A) That It Would Ultimately Pro-

mulgate A 50 Ug/m’ Standard In This Case,

And (B) That The Secondary Smelters Would

Be Confronted With Extremely Discriminatory,

Nonuniform, Destructive Compliance Costs

And Deadlines

The lower court’s majority opinion concedes that

‘OSHA was occasionally careless or inefficient in its

procedures throughout the rulemaking,’’ and it jocularly

suggests that ‘‘procedural purists will never place the

lead standard in the Pantheon of administrative pro-

‘* These issues, of course, are different than, and in addition to,

the Medical Removal Protection issues this Court already has under

review in the Cotton Dust case (American Textile Manufacturers In-

stitute, Inc. v. Marshall, Nos. 79-1429 and 1583, supra).

ceedings.’’** Judge MacKinnon, on the other hand, states

that ‘‘The agency’s failure to properly notify the public

that it was considering such a stringent PEL as 50 ug/m’

is the root of its troubles in this rulemaking*®®

Petitioners, in turn, urge this Court to review

OSHA’s procedures in this case to determine whether, in

truth and in fact, OSHA actually deprived the secondary

lead smelters of both due process of law and their rights

under Section 6(b)(2)-(4) of the Occupational Safety and

Health Act, 29 U.S.C. 655 (b)(2)-(4), and the Ad-

ministrative Procedure Act, 5 U.S.C. 553.

Under Section 6(b)(2) of the OSH Act, OSHA must

publish ‘‘a proposed rule,’’ and afford interested persons

an opportunity to submit written data and comments.

Under Section 6(b)(3), OSHA is obliged to conduct a

hearing with reference to the ‘‘proposed rule.’’ Section

6(b)(4) of the Act then requires the Secretary, after such

hearing, either to issue the ‘‘rule’’ — or ‘‘make a deter-

mination that a rule should not be issued.’’ The Ad-

ministrative Procedure Act contains similar re-

quirements, but plainly here, OSHA was obliged to com-

ply with its own organic statute.

In this case, OSHA’s actual procedure, and the ef-

fect thereof, are accurately described as follows by Judge

MacKinnon:*'

‘*Here, the agency ‘proposed [a] permissible ex-

posure limit [of] 100 ug/m’. .. .’ It never expressly

stated it was considering or might consider the 50

ug/m* standard that it eventually promulgated. Very

little evidence was submitted by industry petitioners

or the agency on any level but the 100 ug/m’, or

** App. to LIA petition, at 15a.

* Id., at 254a.

*' Id., at 255a-257a.

higher. OSHA concedes that no evidence whatsoever

was introduced on the economic feasibility of com-

plying with the 50 ug/m® level. Because of this, and

after noting the thousands of pages introduced by

all the parties, supporting both a stringent or lenient

rule, and finding no evidence on the 50 ug/m! level,

it is plain absurdity to conclude that the parties were

sufficiently informed to permit their meaningful

participation in discussing the possibility that the

proposed permissible exposure limit of 100 ug/m’

would be reduced 50%.

‘*A review of the vague statements in the notice

of proposed rulemaking also points out that the 50

ug/m’ PEL is not a ‘logical outgrowth’ of the pro-

posed rulemaking at 100 ug/m’....

‘‘Therefore, since reasonable notice was not

given, nor evidence received as to the 50 ug/m’

level, and the majority’s defense of such slipshod

practice is wholly illogical, | would remand the case

to OSHA for a rulemaking based on_ proper

notice. ...”

In addition, of course, OSHA likewise completely

failed to give the secondary smelters any advance notice

that they would ultimately be subjected to extremely

discriminatory, nonuniform compliance costs and

deadlines that threaten their very ability to continue to

operate.

OSHA’s actions thus effectively deprived the secon-

dary smelters of their statutory rights under both the

OSH Act and the Administrative Procedure Act, ‘‘to

submit [meaningful] written data or comments’’ and to

defend and cross-examine at the hearings with reference

to both the 50 ug/m® standard ultimately promulgated

and the grossly discriminatory compliance terms finally

imposed by OSHA at the very end of the administrative

proceedings. In the final analysis, the secondary smelters

were unfairly denied due process of law throughout the

OSHA proceedings, and now their very ability to con-

tinue to exist is threatened as a result.

The court of appeals’ decision affirming such

‘careless and_ inefficient’? procedures,*? therefore,

seriously conflicts with the Third Circuit’s decision under

the OSH Act in Synthetic Organic Chemical Mfrs. Assn.

v. Brennan, 506 F.2d 385, 388 (1974), cert. den. 423

U.S. 830 (1978), and with decisions of other federal

courts under other statutes in Arlington Oil Mills, Inc. v.

Knebel, CCAS, 1976, 543 F.2d 1092; American Iron and

Steel Institute v. Environmental Protection Agency,

CCA3, 1977, 568 F.2d 284, 290-292; and American Stan-

dard, Inc. v. United States, C.Cls., 1979, 602 F.2d 256,

267-269.

OSHA’s notice of proposed rulemaking did not ade-

quately inform the secondary smelters of the actions

utlimately taken against them (American Iron and Steel

Institute v. OSHA, CCA3, 1978, 577 F.2d 825, 830), in

a case where those actions clearly were not a mere

‘logical outgrowth’’ of the provisions found in the stan-

dard originally proposed’’ (Taylor Diving & Salvage Co.

v. Dept. of Labor, CCAS, 1979, 599 F.2d 622, 626).

CONCLUSION

Petitioners respectfully submit that this petition for

certiorari should be granted.

Respectfully submitted,

. EDWARD L. MERRIGAN

Attorney for Petitioners NARI, et al.

6000 Connecticut Ave., N.W.

Washington, D.C. 20015

656-0210

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APPENDIX A

United States Court of Appeals

For The District Of Columbia Circuit

September Term, 1980

No. 79-1048

UNITED STEELWORKERS OF AMERICA AFL-CIO-CLC,

Petitioner

Vv.

RAY MARSHALL, SECRETARY OF LABOR, ET AL.,

Respondents

AND CONSOLIDATED CASES

FILED OCT 24 1980

BEFORE: WriGiT, Chief Judge, ROBINSON and

MACKINNON Circuit Judges

ORDER

Upon consideration of the petitions for rehearing filed by

petitioner National Association of Recycling Industries, by

petitioners South Central Bell System, et al. and by the In-

dustry petitioners and intervenors, it is

ORDERED by the Court that all of the foregoing petitions

are denied.

Per Curiam

For THE Court:

/s/ GEORGE A. FISHER

Clerk

Circuit Judge MacKinnon voted to grant the petitions for

rehearing for the reasons stated in his dissenting opinion.

APPENDIX B

United States Court Of Appeals

For The District of Columbia Circuit

September Term, 1980

No. 79-1048

UNITED STEELWORKERS OF AMERICA AFL-CIO-CLC,

Petitioner

RAY MARSHALL, SECRETARY OF LABOR, ET AL.,

Respondents

AND CONSOLIDATED CASES

FILED OCT 24 1980

BEFORE: Wright, Chief Judge; McGowan, Tamm,

Robinson, MacKinnon, Robb, Wilkey, Wald,

Mikva, Edwards and Ginsburg, Circuit Judges

ORDER

The suggestions for rehearing en banc filed by petitioner

National Association of Recycling Industries, petitioners

South Central Bell System, et al. and by the Industry

petitioners and intervenors having been transmitted to the full

Court and a majority of the judges in regular active service

not having noted in favor thereof, it is

ORDERED, by the Court, en banc, that the aforesaid

suggestions for rehearing en banc are denied.

Per Curiam

For THE Court:

/s/ GeorRGE A. FISHER

Clerk

Circuit Judge McGowan did not participate in the

consideration of the suggestion for rehearing en banc filed by

petitioners South Central Bell & Bell System.

Circuit Judge MacKinnon voted to grant the suggestions for

rehearing en banc for the reasons stated in his dissenting

opinion.

APPENDIX C

United States Court of Appeals

For The District Of Columbia Circuit

September Term, 1980

No. 79-1048

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

Petitioner

Vv.

RAY MARSHALL, SECRETARY OF LABOR, ET AL.

Respondents

AND CONSOLIDATED CASES

FILED OCT 24 1980

BEForE: Wright, Chief Judge; Robinson and

MacKinnon, Circuit Judges

ORDER

Upon consideration of the motion of industry petitioners

and intervenors for an extension of time to complete

proceedings on remand, of their motion for clarification of

this Court’s August 15, 1980 ruling or to stay the new lead

standard, of respondents’ opposition to petitioners’ and

intervenors’ request for an extension of time to complete

proceedings on remand, of petitioners’ and _ intervenors’

motion for expedited consideration, and of the motions filed

by respondents and _ by _petitioner-intervenor United

Steelworkers requesting extensions of time to reply to the

motion for clarification or to stay, it is

ORDERED, by the Court, that petitioners’ and intervenors’

motion for expedited consideration is granted, and it is

FURTHER ORDERED, by the Court, that petitioners’ and

intervenors’ motion to extend the time within which the

Secretary of Labor is to take certain specified action to and

including January 30, 1981 and May 15, 1981, respectively, is

denied, and it is

FURTHER ORDERED, by the Court, that petitioners’ and

intervenors’ motion for clarification and their motion to stay

the new lead standard are denied, and it is

FURTHER ORDERED, by the Court, that petitioners’ and

intervenors’ motion that those covered by the new lead

standard be allowed to meet the permissible exposure limit

(‘‘PEL’’) by any combination of certain specific factors is

denied.

Per Curiam

FoR THE COURT:

/S/ GEORGE A. FISHER

Clerk

APPENDIX D

OSHA EXHIBIT 22

CONTRACT NO. J-9-F-6-004

‘PRELIMINARY TECHNOLOGICAL FEASIBILITY,

COST OF COMPLIANCE AND ECONOMIC IMPACT

ANALYSIS OF THE PROPOSED OSHA STANDARD

FOR LEAD”’

Prepared for:

United States Department of Labor Occupational Safety and

Health Administration Health Standards Development

Washington, D. C.

Prepared for:

John Short & Associates, Inc. 1414 Walker Bank Building

Salt Lake City, Utah 84111

4.3.2 Secondary Smelters and Refineries

4.3.2.1 Industry Overview

The domestic secondary smelting industry is one of the most

successful recycling operations in the world. It is estimated

that 58% of all lead produced is technically recyclable.' At

present the industry recycles 42-43% of all lead, a rate of

recovery which is significantly above the rest of the world.

Due to recent technological improvements, secondary lead

meets all the specifications demanded by primary lead users

as specified by the American Society for Testing Metals.

Hence, secondary lead has become virtually a_ perfect

substitute for primary lead and the two products are viewed

as homogenous... .

The secondary industry actively competes with the primary

lead companies both nationally and internationally. In fact,

the secondaries have been largely credited with breaking the

international cartel’s price support effort during 1974 by ag-

gressively selling in the international market at the supported

price.? All the secondary producers interviewed during this

study indicated that they are selling or have sold abroad, and

they feel they can compete favorably with primary producers

in both markets.’.. .

A majority of independent producers face a considerably

different outlook. Most of these operations are already less

efficient than the large integrated producers. Furthermore,

based on extremely limited data, it appears that the rate of

return on sales already hovers in the 0-3% range.’ In

addition, virtually all of these plants face, among others,

compliance costs related to EPA lead in air standards.

Lastly, it appears that the average book value of independent

producer assets are in the $50,000-$400,000 range, with

market values much lower due to their dim future.° Their

individual ability to raise an estimated $800,000-$1,350,000 in

capital therefore appears remote at best... .

There is good reason to suspect that the independent

secondaries would go through a winnowing process, with the

least efficient, highest cost producers leaving the industry

first. These firms would have little incentive to leave until

forced out by compliance pressures to this or other

standards. .. .

The remaining 17-19 firms, accounting for approximately

100,000 tons per year, will close over time (probably five to

seven years). ...

APPENDIX E

EXECUTIVE OFFICE OF THE PRESIDENT

COUNCIL ON WAGE AND PRICE STABILITY

726 Jackson Place, N.W.

Washington, D.C. 20506

FOR IMMEDIATE RELEASE

Tuesday, March 15, 1977

COUNCIL COMMENTS ON OSHA’S PROPOSED

STANDARD ON LEAD

The Council on Wage and Price Stability today urged the

Occupational Safety and Health Administration (OSHA) to

modify its proposed standard for exposure to lead in the

workplace. OSHA’s proposal would require smelters, battery

manufacturers, and other firms to install engineering controls

that reduce the maximum exposure level from its present 200

micrograms of lead per cubic meter of air to 100 micrograms.

In its filing before OSHA, the Council supported the goal of

improving worker health and supported regulations that

achieve this objective in the most cost-effective and efficient

manner. The Council noted that while the proposed standard

could cost the industries affected and ultimately consumers

over $300 million per year, OSHA has not shown that less

costly alternatives would be any less effective in reducing

illness and mortality. Therefore, the Council urged that

OSHA consider alternative measures to protect workers from

overexposure to lead. In particular, the Council urged that

OSHA not require engineering controls but instead allow

employers to meet any promulgated standard by using the

least costly means. The Council also urged greater reliance on

a health performance standard based on biological monitoring

to detect and correct situations which might lead to

overexposure. Were such an alternative measure adopted, the

Council emphasized that OSHA should not allow employers

to merely rotate workers in and out of high-exposure areas

without correcting the underlying exposure situation.

The Council’s Interest

The Council was created by the Council on Wage and

Price Stability Act of 1974.' The Council’s purpose under the

Act is to monitor the inflationary impact of activities in both

the private and public sectors of the economy and to report

its findings on such matters. With regard to the public sector,

section 3(a) of the Act expressly directs the Council to:

(5) focus attention on the need to increase productivity in

both the public and private sectors of the economy;

(7) review and appraise the various programs, policies,

and activities of the departments and agencies of the

United States for the purpose of determining the extent

to which those programs and activities are contributing to

inflation; and

(8) intervene and otherwise particpate on its own behalf

in rulemaking, ratemaking, licensing and_ other

proceedings before any of the departments and agencies

of the United States, in order to present its views as to

the inflationary impact that might result from the

possible outcomes of such proceedings.

In addition, Executive Orders 11821 and 11949 and Office of

Management and Budget (OMB) Circular A-107 authorize the

Council to receive and evaluate Economic Impact Statements

prepared by Executive-branch agencies about their major

proposals for rules and regulations.

In the Council’s view, inflation is more than simply a

matter of possible increases in conventional indices such as

the consumer price index (CPI). Rather, to the extent that the

benefits of a proposed regulation exceed its costs, that

regulation is anti-inflationary, even though the benefits may

not be reflected in a lower CPI. On the other hand, if the

' Public Law 93-387, as amended by Public Law 94-78, 12

U.S.C. 1904 note.

10a —

costs of a proposed regulation exceed the benefits, it is

inflationary. We note also that the ‘‘cost’’ of a regulation

may be the foregone opportunity of adopting a better one.

Therefore, to the extent that the goals of a proposed

regulation could be achieved in a more efficient, less costly

manner than the method which the regulation contemplates,

that regulation is, in a real sense, inflationary.

Under Executive Orders 11821 and 11949 and OMB

Circular A-107, each agency is expected to provide for each

major proposed regulation:

(1) An analysis of the principal cost or other inflationary

effects of the action on markets, consumers,

businesses, etc., and, where practical, an analysis of

secondary cost and price effects. These analyses

should have as much quantitative precision as

necessary and should focus on a time _ period

sufficient to determine economic and _ inflationary

impacts;

(2) A comparison of the benefits to be derived from the

proposed action with the estimated costs and

inflationary impacts. These benefits should be

quantified to the extent practical; and

(3) A review of alternatives to the proposed action with

respect to their probable costs and_ benefits,

particularly as they compare with the proposed

action. ...

Comments on the Proposal and the Economic Impact

Statement

The Council supports the goal of removing the hazards to

worker safety and health that exist in the workplace.

However, in view of the very large costs associated with

proposed standards and the absence of any quantification of

the incremental benefits attributable to the proposal, we

would urge OSHA to seriously consider alternative, less costly

means of protecting workers from the hazards of lead

lla

poisoning. Such alternatives might include strict enforcement

of the existing standard coupled with biological monitoring.

OSHA should consider all cost-effective means (including the

use of personal protective equipment) of reducing worker

exposure to lead... .

Analysis of Costs

Anticompetitive effects of the proposed regulation are

potentially major in the secondary smelting and battery

manufacturing industries. These two _ industries are

characterized by the existence of a few very large firms and

numerous small firms... .

The secondary lead smelting industry is involved in

producing refined lead from reclaimed scrap materials. This

secondary lead is a perfect substitute for refined lead from

primary smelters. Secondary !ead accounts for 60 percent of

the total production of lead, and it is produced by four large

firms and numerous small firms. Easier entry into this area of

the lead production industry exerts pressure on what would

otherwise be an oligopolistic industry. Unfortunately, the

proposed lead standard, with its very high capital costs of

compliance, (that do not vary in proportion to capacity) may

force many of the smaller firms to close.' This does not mean

that the Council considers all regulations to be necessarily

undesirable if they tend to force some small firms out of

business. Many regulations are aimed at internalizing costs

that were previously external to the firm and were therefore

borne by society at large rather than by producers and

consumers of the product. Economies of scale may very well

exist in regard to these newly internalized costs (as well as

other costs in the production protess), thereby reducing the

economic viability of small firms. However, such a reduction

in the competitive nature of the market may impose other

costs on society which should be considered when costs and

benefits of proposed regulations are weighed... .

' Economic Impact Statement: Inorganic Lead, p. 6-20.

12a

Analysis of Alternatives

The Economic Impact Statement does not discuss or even

mention any alternatives to the proposed action on lead. It

would seem that at the very least OSHA ought to consider the

incremental costs and possible benefits of rigid enforcement

of the existing (200 ug Pb/m3) standard plus biological

monitoring of workers. Intensive employee training and orien-

tation should be required so that those who are exposed to

lead can develop work habits that minimize exposure.' The

lowering of actual worker exposure, as measured by either

blood lead levels or by other recommended biological

monitoring, could thereby be achieved in a more cost-effective

manner.’

Another alternative standard that should be given further

consideration is NIOSH’s recommendation issued in 1972.

NIOSH urged the adoption of an eight-hour time-weighted

average lead concentration in air of 150 ug/m3 combined with

biological monitoring which would limit lead in the blood to

80 ug/100 g. In 1972, NIOSH presented a very strong case for

this standard in terms of worker health. Biological monitor-

ing, in particular the use of blood samples to check for

»verexposure to lead, coupled with full employer liability for

the consequence of such overexposure, is an alternative

'M. K. Williams, E. King, and Joan Walford, ‘‘An Investigation

of Lead Absorption in an Electric Accumulator Factory with the

Use of Personal Samples,’’ British Journal of Industrial Medicine,

1969, 26, pp. 202-216. The lead exposures of men doing almost

identical jobs differed by ratios of up to four to one. This could be

attributed only to personal differences in working habits according

to Williams ef al.

> A recently issued NIOSH research report recommends max-

imum blood lead levels of 70 ug/100 g. and another biological test

for ALA-D in the blood. The latter was found to be a more reliable

indicator of overexposure to lead. J. O. Repko, B. B. Morgan, Jr.,

and J. A. Nicholson, Behavioral Effects of Occupational Exposure

to Lead, NIOSH Research Report, May, 1975’ HEW Contract No.

HSM 99-72-123.

13a

OSHA action that should be studied. Since biological

monitoring more accurately indicates the likelihood of adverse

effects than do air concentrations, and since employers would

be liable for those adverse effects, the same or greater health

benefits would ensue.' OSHA might also impose penalties on

the employer whenever employees showed evidence in their

blood samples (or other biological indicators) of overexposure

to lead.? Such a standard that is so closely related to worker

health could provide incentives to employers to improve their

performance in this area while leaving intact their incentive to

meet the performance standard in the least’ costly

manner... .

A less capital-intensive means of protecting workers (such

as personal protective equipment) would not burden the small

firm with few employees the way the proposed standard does.

Therefore, the anticompetitive effect of OSHA’s proposal

could be largely avoided.

In some of the work areas of the smelters as well as at

the battery and pigment manufacturing plants, employees

would have to wear respirators and would have to rotate work

assignments and work areas within each eight-hour day in

‘Symptoms of overexposure usually disappear when exposure

ceases unless that overexposure has existed for a long time and the

symptoms have been allowed to progress untreated. Low-level lead

exposure (below the proposed standard) has been found to affect

various biochemical processes in the body, but it is unknown

whether or not any actual harm results. There does not appear to

be a latency period before the effects of overexposure manifest

themselves.

> Any biological standard established by OSHA should, of

course, provide a margin of safety for female as well as male

workers. There are indications that women may be more susceptible

to lead poisoning than men in the same exposure conditions. See

National Academy of Sciences, Lead (Washington: 1972), pp.

152-154.

l4a

order to avoid an eight-hour time-weighted exposure level that

exceeded the proposed standard of 100 micrograms of lead

per cubic meter of air. Thus, the inconvenience and loss of

productivity that might accompany the wearing of respirators

and/or rotation of work assignments would be borne anyway

in meeting the standard. In these areas the associated expense,

training, and bother associated with respirators and revised

work practices would be incurred even with the maximum

possible engineering controls in place. The added cost of

engineering changes t® achieve the proposed standard could

be avoided while achieving essentially the same results.' The

use of respirators and protective clothing would appear to be

a particularly desirable substitute for engineering controls in

those high-exposure work areas that are occupied by

employees for only a few hours each day.

Still another alternative not mentioned in the Economic

Impact Statement appears worthy of consideration. Since the

cost of engineering controls on new plant and equipment (for

the purpose of meeting a prescribed level of exposure

reductions) tends to be lower than ‘‘retrofitting’’ old plant

and equipment, OSHA _ could consider tailoring the

requirements accordingly, perhaps allowing old plants to meet

the standard through personal protection programs and

requiring engineering controls only on new plants.

Summary and Conclusions

The Economic Impact Statement submitted by OSHA

appears to adequately represent the possible magnitude of the

costs of the proposed standard but has fallen short of

quantification of the incremental benefits of a more stringent

lead standard. Moreover, no alternative exposure levels,

means of compliance or methods of achieving equivalent

'To the extent that engineering controls enabled the proposed

standard to be met with less costly respirators, the net saving would

be less than the cost of the engineering controls.

1Sa (

health effects have been studied, so that the decision-making

process could not reasonably arrive at the best regulation to

protect worker health. The Council urges that fo the degree

feasible these inadequacies be rectified.

Specifically, the Council recommends that OSHA

seriously consider the costs and benefits of alternative changes

in the lead standard. Perhaps rigid enforcement of the current

standard supplemented by the proposed housekeeping and

hygiene rules and mandatory biological monitoring and

treatment would suffice to protect workers from overexposure

to lead. In any event, data on costs and benefits should be

sought which would enable OSHA to rationally decide

whether or not the standard or the required means of

compliance should be changed.

Respectfully submitted,

/s/ Roy A. NIERENBERG

Assistant General Counsel

/s/ DIANNE R. LEVINE

Senior Economist

Government Operations

and Research

/s/ ROBERT W. CRANDALL

Acting Director

/s/ THOMAS D. HOopkKINs

Acting Assistant Director

Government Operations

and Research

Date: March 15, 1977

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.