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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981

## Text

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,

V.

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
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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

B.

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

18

24

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

27
30

la

2a

4a

6a

iv

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 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.

8

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.

9

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

10

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.

12

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.

13

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).

14

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

15

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-

16

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.

17

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).

18

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.

19

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.

20

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.

21

(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.

22

(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.
at

23

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.

24

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).

25

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.

26

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

*© App. to LIA petition, at 260a.
29 U.S.C. 653(b)(4).

27

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).

28

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.

29

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.

30

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.

2a

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
we

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

3a

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.

4a

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

Sa

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

6a

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

7a

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). ...

8a

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.

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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.

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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.

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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.

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1140%3A1. Public record. Not legal advice.