# Opposition Brief — National Cottonseed Products Ass'n v. McLaughlin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 1020

## Text

No. 87-1214

OCTOBER TERM, 1987

NATIONAL COTTONSEED PRODUCTS ASSOCIATION,
PETITIONER

v.

ANN MCLAUGHLIN, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

CHARLES FRIED
Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 633-2217
GEORGE R. SALEM
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor for
Special Appellate and
Supreme Court Litigation
MARY —HELEN MAUTNER
Counsel for Appellate Litigation
CHRISTINE L. OWENS
Attorney
Department of Labor
Washington, D.C. 20210

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QUESTION PRESENTED

Whether the Occupational Safety and Health Adminis-
tration’s cotton dust standard properly requires monitor-
ing and medical testing of cottonseed processing
employees, in order to protect the health of especially
susceptible employees and to check the accuracy of the
risk assumptions underlying removal of a longstanding ex-
posure limit.

(1)

TABLE OF CONTENTS

(111)

Page
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TABLE OF AUTHORITIES
Cases:
AFL-CIO v. Marshall, 617 F.2d 636 (D.C. Cir. 1979),
aff'd in part and vacated in part sub nom. American
Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490
ad a ba oes bya Xs ee ada ey eke as 3
Cotton Warehouse Ass’n v. Marshall, 449 U.S 809
es Gat ig Bn'a-d p ou sk bk be ae ew 4
Forging Indus. Ass’n v. Secretary of Labor, 773 F.2d 1436
Ee So ene re 10
GAF Corp. v. Occupational Safety & Health Review
Comm’n, 561 F.2d 913 (D.C. Cir. 1977) ............. —
Industrial Union Dep’t v. American Petroleum Inst., 448
ee ie og ono hd wae as «de aaa 1% passim
Texas Independent Ginners Ass’n v. Marshall, 630 F.2d
ee bak NR asad ease cekeawaes 12, 13
United Steelworkers v. Marshall, 647 F.2d 1189 (D.C.
Cir. 1980), cert. denied, 453 U.S. 913 (1981) .......... 10
Statutes and regulations: ’
Occupational Safety and Health Act of 1970, 29 U.S.C.
Se a ee 2
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Regulations — Continued: Page
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Section 1910. 1043(k)(2)-(4) ........ ccc cece ccc eeee 5, 6

Miscellaneous:

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48 Fed. Reg. 26966-26967 (1983) ..........-.: gooey
50 Fed. Reg. (1985):

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Jn the Supreme Court of the Anited States

OCTOBER TERM, 1987

No. 87-1214

NATIONAL COTTONSEED PRODUCTS ASSOCIATION,
PETITIONER

V.

ANN MCLAUGHLIN, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-23a)
is reported at 825 F.2d 482. The Secretary of Labor’s
amended cotton dust standard and statement of reasons in
support of the regulation appear at 50 Fed. Reg.
§1120-51179 (1985).

JURISDICTION

The judgment of the court of appeals (Pet. App.
24a-25a) was entered on August 7, 1987. A timely petition
for rehearing, with suggestion of rehearing en banc, was
denied on October 23, 1987 (Pet. App. 26a-27a). The peti-
tion for a writ of certiorari was filed on January 20, 1988.
This Court’s jurisdiction is invoked under 28 U.S.C.
1254(1).

(1)

STATEMENT

| Ihe Occupational Safety and Health Act

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29 U.S.C. 651 ef seq. (the Act), empowers the Secretary
Labor to adopt occupational satety and health standards
the Act

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Secretary, within two

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cupational safety or health standards existing

consensus” ol

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Secretary

through notice

655(5)). Whenever a rule promulgated pursuant

tO promulgate,

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6(b)(8) “ditters substantially

COISCHSUS standard,” [ne Secretary must

Federal Register the

effectuate the purposes of” the Act (29 U.S.¢

Section 6(b)(5) requ.res

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posure to airborne concentrations of cotton dust (Pet.
App. 3a). In 1976, the Occupational Safety and Health
Administration (OSHA) announced its intention to pro-
mulgate a permanent Section 6(b) cotton dust standard (41
Fed. Reg. 56498), and after amassing a voluminous
record, published a final rule in 1978 covering all aspects
of cotton dust exposure in textile and non-textile industries
(43 Fed. Reg. 27350).' For the cottonseed processing in-
dustry, in which petitioner’s members are engaged, the
1978 standard prescribed a permissible exposure limit
(PEL) of 500 ug/m3 and required cottonseed oil mills to
institute medical surveillance programs, providing for ini-
tial placement and annual medical screening of employees
(Pet. App. 3a).?

This standard never took effect for cottonseed process-
ing and other non-textile industries, however, because of
litigation before the court of appeals and this Court. AFL-
CIO v. Marshall, 617 F.2d 636 (D.C. Cir. 1979), aff'd in
part and vacated in part sub nom. American Textile Mfrs.
Inst., Inc. v. Donovan, 452 U.S. 490 (1981).3 Accordingly,
the cottonseed processing industry has remained con-
tinuously subject to the Section 6(a) PEL of 1000 ug/m3
(Pet. App. 3a).

' The toxic nature of cotton dust, its acute and chronic effects on
pulmonary function, and the history of its regulation are fully dis-
cussed in American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490
(1981).

2 Cottonseed processing involves breaking down untreated cot-
tonseed into linters (coarse fuzz) and seed hulls and kernels. The proc-
ess is dusty and the linters contain contaminants similar to those in
baled cotton fiber. After cleaning, linters are baled and the seed rem-
nants are used to produce cottonseed oil and meai. 43 Fed. Reg.
27350, 27369 (1978).

3 The court of appeals remanded the record for cottonseed process-
ing only for reconsideration of the standard’s economic feasibility.
AFL-CIO v. Marshall, 617 F.2d at 669. Thereafter, when this Court
remanded the other non-textile segments tor reconsideration in light
of Industrial Union Dep't vy. American Petroleum Inst., 448 U.S. 607

4

On remand from the litigation, the Secretary reviewed a
number of cross-sectional health studies of American and
foreign cottonseed processing workers, as well as medical
expert testimony regarding health risks and protective
measures (Pet. App. 7a; SO Fed. Reg. 51133-51137 (1985);
48 Fed. Reg. 26966-26967 (1983)). The studies of domestic
cottonseed workers uniformly demonstrated that a
number of cottonseed workers manifest impaired lung
function at current levels of cotton dust exposure in cot-
tonseed oil mills, which is especially linked to length of
employment, exposure at early steps of processing, general
and specific allergies, and smoking (Pet. App. 7a; 50 Fed.
Reg. 51133-51134 (1985)). There was, however, no affirm-
ative evidence of increased prevalences of byssinosis,* or
of a dose-response relationship at current exposure levels
(ibid.). Studies of foreign cottonseed workers, however,
showed increased prevalences of byssinosis and other
chronic lung disease at very high exposure levels (Pet.
App. 7a, 8a; 50 Fed. Reg. 51133, 51135 (1985)). All
medical experts agreed that the dust in cottonseed oil mills
is not a “mere nuisance,” but rather has “ ‘some biologic
activity of a kind similar to that found in cotton textile
mills’” (Pet. App. 7a; 50 Fed. Reg. 51134-51135 (1985)
(citation omitted)). These experts unanimously recom-
mended medical surveillance of those working in the cot-
tonseed industry to protect the health of especially suscep-
tible workers and to develop an appropriate evidentiary

(1980), see Cotton Warehouse Ass’n v. Marshall, 449 U.S. 809 (1980),
the Secretary undertook a similar review for cottonseed processing
too.

* Byssinosis, also known as “brown lung” disease, is a respiratory
ailment characterized by coughing, breathlessness or tightness of the
chest. See 50 Fed. Reg. 51125 (1985).

base for making an accurate assessment of true risk (Pet.
App. 7a; 50 Fed. Reg. 51134 (1985)).°

Applying the significant risk analysis mandated by /n-
dustrial Union Dep’t v. American Petroleum Inst., 448
U.S. 607 (1980) [hereinafter Benzene],° the Secretary
found that there was “not sufficient evidence of significant
risk [within the cottonseed industry] which could be
substantially reduced by lowering exposure limits” (50
Fed. Reg. 51135 (1985)). The Secretary therefore declined
to establish a new, lower Section 6(b) exposure limit
(ibid.). Similarly, the Secretary concluded from the same
evidence that removal of the existing Section 6(a) PEL
would not lead to significant health risk (SO Fed. Reg.
51136 (1985)).

The Secretary concluded, however, that he could find
no significant risk in removing the existing PEL only if a
“backstop” program of medical monitoring of employees
was retained, in order to assess the correctness of that
judgment and to protect unusually susceptible workers (50
Fed. Reg. 51135-51136 (1985)). Accordingly, the Secretary
imposed on the industry the medical surveillance and
related recordkeeping requirements of the cotton dust
standard.’ The Secretary found direct support for this

’ One expert stressed that the true risk for cottonseed workers may
be underestimated by the large cross-sectional studies in the record (50
Fed. Reg. 51133-51134 (1985)). He noted that medical surveillance
would provide the type of longitudinal data necessary to make an ac-
curate assumption about the real level of risk in cottonseed oil mills
(ibid.).

6 The Secretary described his analytical approach to the significant
risk analysis, including the factors to be taken into account in making
rational policy judgments regarding risk, at 50 Fed. Reg. 51131
(1985).

? These provisions, set out at 29 C.F.R. 1910 1043(h)(2) and
(k)(2)-(4), require employers to provide initial placement medical
screening, followed by routine screening every two years, except for

6

action in a passage in Benzene (448 U.S. at 657-658),
where this Court approved in dictum “a backstop in the
form of monitoring and medical testing,” imposed in con-
junction with standards set at exposure levels below those
of significant risk. Such monitoring allows OSHA to
“ ‘keep a constant check on the validity of the assumptions
made in developing the permissible exposure limit, giving
it a sound evidentiary basis for decreasing the limit if it
was initially set too high’ ” and to “ ‘ensure that workers
who were unusually susceptible * * * could be removed
from exposure before they had suffered any permanent
damage’ ” (SO Fed. Reg. 51135 (1985) (quoting 448 U.S. at
658)).

This dictum applied here, the Secretary explained,
because the decision to remove exposure limits was based
on less-than-perfect evidence and two of the reasons cited
by Benzene for a medical surveillance backstop were
directly implicated by the record. Specifically, a backstop
was necessary to “check on the validity of the as-
sumption[{]” that deregulation would not lead to signifi-
cant health risks, since exposures might rise after the PEL
was removed and the foreign studies showed an increased
incidence of chronic lung disease at higher exposure levels,
and thus an affirmative dose-response relationship (50
Fed. Reg. 51135 (1985)). Moreover, there was a clear
medical need for such monitoring to identify and protect
especially susceptible workers who, even at current ex-
posure levels, had been shown to be at risk (/d. at 51136).
Accordingly, the Secretary determined not to exempt the

those employees as to whom the results of testing indicate that more
regular testing (/.e., every six months) is appropriate. The tests include
completion of a prescribed questionnaire; objective pulmonary func-
tion tests; and completion of a physician’s report containing specified
information. The recordkeeping requirements of Section
1910.1043(k)(2)-(4) are keyed to these medical screening provisions.

cottonseed processing industry from the medical
surveillance requirements of the cotton dust standard.

3. Petitioner National Cottonseed Products Associa-
tion sought review, pursuant to 29 U.S.C. 655(f), of the
cotton dust standard as it applies to the cottonseed proc-
essing industry. The court of appeals upheld the medical
surveillance requirements as “sanction[ed]” by “an
unusually precise dictum in Benzene” (Pet. App. 4a). The
court explained that the Benzene Court specifically ad-
dressed the Secretary’s regulatory options where she is
“uncertain whether the residual risk [at the selected ex-
posure level is] significant” (id. at 6a). In such cir-
cumstances, the Secretary has authority, as explained in
Benzene, to require backstop employee health monitoring
to check the validity of the assumptions regarding the ex-
posure limit selected, to develop sound evidence for
changing the exposure limit, and to “ensure that unusually
susceptible workers could be removed from exposure
before they suffered permanent damage” (ibid., citing
Benzene, 448 U.S. at 657-658). Thus, Benzene permits
“backstop monitoring” where the “ ‘less-than-perfect’ ”
evidence upon which OSHA relies “indicates * * * a real
possibility of significant health risks under the other
aspects of the standard adopted (here, no regulation at
all)” (Pet. App. 8a).

The court also found the evidence in the rulemaking
record sufficient to “invoke the conditions suggested by
** * Benzene for a backstop monitoring requirement”
(Pet. App. 8a). The studies of cottonseed workers and ex-
perts’ testimony disclosed that, at existing exposure levels,
domestic cottonseed workers as a group suffer from
decreased lung function, even though they do not ex-
perience an increased incidence of byssinosis (/d. at 7a).
And a subset of hypersensitive workers suffer from

8

respiratory ailments (id. at 4a, 7a). Moreover, foreign cot-
tonseed workers subject to higher doses than domestic
workers experience significant health effects, suggesting a
dose-response relationship (id. at 7a). Thus, the Secretary
appropriately concluded that “the risk of material harm to
cottonseed workers would not be ‘significant’ even without
a PEL, so long as medical surveillance was retained as a
‘backstop’ ” (id. at 4a (quotation in original)).

Responding to petitioner’s argument that medical
surveillance may be required only where OSHA identifies
some “ ‘reasonably attainable level’ ” at which harm will
occur, the court of appeals noted that OSHA was
hampered in making such a determination here because of
the “ambiguous relation between reality and the pre-
existing regulation” (Pet. App. 6a).* The court of appeals
concluded, however, that application of the Benzene dic-
tum was justified by the evidence of risk before OSHA,
- from which it reasonably inferred that exposures might
rise, to the detriment of worker health, with the removal
of exposure limits (id. at 6a-7a). The court agreed with the
Secretary that under these circumstances, medical
surveillance was necessary both to protect worker health
and to provide an evidentiary basis for assessing the validi-
ty of the assumptions upon which OSHA relied in
eliminating the PEL.’

* The court noted general agreement that the cottonseed industry
“has not complied with the 1000 ug/m3” PEL, but stressed that “there
is nO concession that the regulations of the past 16 years have been ab-
solutely without effect,” and that one study found that 16 of 18 mills
maintained mean exposure levels at or below the PEL (Pet. App. 6a).

¥ The court also rejected petitioner’s claims that compliance with
the medical surveillance requirements is not technologically or
economically feasible for the industry. Petitioner does not seek review
of this aspect of the court’s ruling, although it asserts that medical
surveillance is costly and inconvenient (Pet. 14). The court of appeals

9

ARGUMENT

The decision of the court of appeals is correct and does
not conflict with any decision of this Court or of any other
court of appeals. Accordingly, the petition for a writ of
certiorari should be denied.

1. The court below correctly held that the Secretary’s
decision to require “backstop” medical surveillance of cot-
tonseed industry workers falls squarely within an
“unusually precise” dictum in the Benzene decision. The
central thrust of the pertinent passage (448 U.S. at
657-658) is that backstop monitoring may be required even
at exposure levels with respect to which no significant risk
is shown. To justify such “backstop” monitoring, the
Secretary must reasonably conclude, based on the best
available evidence, that there is residual risk at those lower
exposure levels which warrants prophylactic regulatory ac-
tion. See 448 U.S. at 657-658. As the court of appeals
held, the Secretary properly found that the rulemaking
record invoked precisely the same conditions identified in
Benzene as warranting backstop monitoring.!°

First, as the court found, the record conclusively
established a class of unusually susceptible cottonseed

upheld OSHA's conclusion that the costs of compliance here with the
medical surveillance requirements were minuscule (slightly over
$70,000 annually, or less than 0.01% of the industry’s annual gross
revenues of $777.6 million), finding that any errors made by OSHA in
its cost analysis were “trivial” and inconsequential (Pet. App.
lla-12a).

'® Section 6(f) of the Act, 29 U.S.C. 655(f), prescribes “substantial
evidence” review of the Secretary’s determinations. The court below
carefully reviewed the evidence upon which the Secretary had relied in
this case, as well as contradictory evidence in the record, and found
the evidence supported the medical surveillance standard. Petitioner
does not challenge the court’s decision on substantial evidence
grounds

10

workers who suffered impaired lung function even at cur-
rent levels of cotton dust exposure. As in Benzene, medical
surveillance would protect their health by permitting their
removal from exposure. See Pet. App. 6a; compare 50
Fed. Reg. 51135-51136 (1985) (monitoring allows removal
of unusually susceptible persons from particularly dusty
jobs); Benzene, 448 U.S. at 658 (footnote omitted)
(monitoring “could ensure that workers who were
unusually susceptible to benzene could be removed from
exposure before they had suffered any permanent
damage’”).!!

The record also demonstrated clear increased
prevalences of byssinosis and other chronic lung diseases
among workers in foreign cottonseed oil mills, where ex-
posure levels are higher. Given the real possibility that ex-
posures in American cottonseed mills might rise with the
removal of the Section 6(a) PEL,'? backstop monitoring

'' Numerous decisions uphold the imposition of medical testing and
other remedial requirements at action levels lower than established ex-
posure limits, in order to protect especially susceptible workers. See,
e.g., GAF Corp. v. Occupational Safety & Health Review Comm'n,
561 F.2d 913 (D.C. Cir. 1977) (cited approvingly in the Benzene
discussion of backstop surveillance, upholding the requirement of
medical examinations for employees exposed to any airborne concen-
trations of asbestos); Forging Indus. Ass’n v. Secretary of Labor, 773
F.2d 1436, 1443-1444 (4th Cir. 1985) (en banc) (upholding hearing
conservation amendment to noise exposure standard, providing for
testing and appropriate follow-up measures, as needed, for employees
exposed to noise levels at action levels below the PEL); United
Steelworkers v. Marshall, 647 F.2d 1189, 1237 (D.C. Cir. 1980), cert.
denied, 453 U.S. 913 (1981) (upholding the medical removal provi-
sions of the lead standard, keyed to the results of medical surveillance
and biological monitoring cf employees exposed to lead concentra-
tions significantly lower than the PEL).

‘2 Petitioner argues (Pet. 14) that industry was not in compliance
with the existing PEL, and thus that it was unreasonable to assume

11

was necessary to check the validity of the basic assumption
that elimination of the PEL would not give rise to signifi-
cant risk. There is thus no merit to petitioner’s contention
(Pet. 12-13) that the court below sanctioned impermissible
employer-financed data gathering of merely possible
health risks. See Pet. App. 7a; 50 Fed. Reg. 51136 (1985)
(medical surveillance “provide[s}] a backstop if [OSHA’s]
judgment [on significant risk] is incorrect”); Benzene, 448
U.S. at 658 (footnote omitted) (OSHA “could keep a con-
stant check on the validity of the assumptions made in
developing the permissible exposure limit, giving it a
sound evidentiary basis for decreasing the limit if * * * in-
itially set too high”). This Court specitically approved this
“type of information-gathering” as contemplated by Sec-
tion 6(b)(7), “which empowers the Secretary to require
medical examinations to be furnished io employees ex-
posed to certain hazards and potential hazards, ‘in order
to most effectively determine’ ” whether worker health is
adversely affected by such exposure. Benzene, 448 U.S. at
658 n. 66 (citations omitted; emphasis added). Thus, the
Secretary properly concluded that significant risk would
not result from removal of the Section 6(a) PEL only it
conditioned on backstop medical surveillance.'* In these

that elimination of the PEL might lead to material health impairment.
The court of appeals correctly rejected this argument, stressing that
because “there is no concession that the regulations of the past 16
years have been absolutely without eltfect,” and, in tact, some record
evidence reflects substantial compliance, the Secretary could “tairls
inter” that removal ot the PEL could result in increased exposure (Pet.
App. 6a).

’ Seizing on the precise tact situation described ii Benzene, peu-
lioner argues that the dictum must be read in exceedingly literal
fashion, aad that backstop monitoring may only be miposed as an ad-
Junet to a PEL or at levels at Which significant tisk is identitied (Pet.
10-11). The court of appeals rightly rejected this coustramed ap-

12

circumstances, the court of appeals correctly held that
Benzene’s “unusually precise dictum” specifically sanc-
tions the backstop medical surveillance standard imposed
on the cottonseed industry in this case.'4

2. Nor does the decision of the court below conflict
with Texas Independent Ginners Ass’n v. Marshall, 630
F.2d 398 (Sth Cir. 1980), as petitioner asserts (Pet. 11-12).
First, the nature of the regulatory actions and their stated
justifications are quite different. The cotton ginning
standard imposed a number of work practices and other
protective measures in addition to medical testing.'’ See
630 F.2d at 402-403. The Secretary rested the standard’s
requirements on a finding of health hazards at existing
unregulated exposure levels. The Fifth Circuit rejected the
standard in its entirety because it concluded that the
Secretary’s finding —characterized as “OSHA’s finding of

proach, which would effectively rob the dictum of its meaning. As the
court of appeals noted, this Court plainly did not confine backstop
monitoring to the precise facts of its hypothetical, nor is there any
sound reason to do so. Rather, the court of appeals correctly recog-
nized that deleting an exposure limit, like lowering or raising a limit, is
a regulatory judgment with respect to which imposition of medical
surveillance as a backstop may be appropriate (Pet. App. 8a).

'* Petitioner erroneously argues (Pet. 11) that this Court would
have upheld the medical surveillance requirements in Benzene if-t
believed that medical surveillance could be imposed in the absence of a
PEL. But this Court specifically noted in Benzene that it was dealing
only with the exposure limits set by the Secretary, and declined to rule
on any other aspects of the standard. See, e.g., 448 U.S. at 630 n.30.

'S In addition to medical surveillance, the cotton ginning standard
required work practice plans to minimize employee exposure to cotton
dust; employee training programs; provision of disposable respirator
masks to all employees desiring them and air powered air purifying
respirators to certain other employees; and posting of workplace
warnings regarding the dangers of cotton dust. See 43 Fed. Reg. 27418
(1978); Ginners, 630 F.2d at 402-403.

13

a significant risk of a material health impairment” (id. at
407) — was not based on substantial evidence but rather on
“assumptions without an adequate evidentiary basis” (id.
at 409). The Fifth Circuit nowhere discussed or even al-
luded to the circumstances under which the Secretary may
require medical surveillance as a backstop to permitted ex-
posure at levels with respect to which no significant risk is
shown. This omission is understandable since the
Secretary did not justify the requirement on “backstop”
grounds either in rulemaking or in the court of appeals. '®

Ginners is also distinguishable from the decision below,
because, as the Fifth Circuit noted, “the 1971 [Section
6(a)] PEL never applied to the ginning industry * * *” (630
F.2d at 403 n.20), and thus the case did not implicate the
provision of the Act which pemits modification or revoca-
tion of a Section 6(a) standard only if “the rule as adopted
will better effectuate the purposes” of the Act (29 U.S.C.
655(b)(8)). By contrast, the cottonseed industry has been
continuously subject to the Section 6(a) PEL. Thus, to
eliminate the Section 6(a) PEL applicable to the cot-
tonseed industry, the Secretary was obligated to find that
the evidence “affirmatively indicate[s]” that significant
risk is “unlikely to exist” at exposures likely to prevail after
the PEL was eliminated. See 50 Fed. Reg. 51132 (1985).
As explained above, the Secretary determined that this
judgment could be made if, and only if, conditioned on
the availability of backstop medical surveillance. No PEL,
combined with medical surveillance, results in both con-
siderable savings to the industry and protection for highly
susceptible workers and reevaluation of risk, thus better
effectuating the Act’s goal of protecting employee health.
See id. at 51135-51136. In Ginners, on the other hand, the

'¢ Ginners was briefed and argued before Benzene was decided,
even though it was issued shortly after Benzene.

14
court had no occasion to consider the circumstances under
which a Section 6(a) exposure limit could properly be
revoked or the link between revocation of a Section 6(a)
limit and retention of medical monitoring as a backstop to
thac determination.

CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.

CHARLES FRIED
Solicitor General

GEORGE R. SALEM
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor for
Special Appellate and
Supreme Court Litigation
MARY —HELEN MAUTNER
Counsel for Appellate Litigation
CHRISTINE L. OWENS
Attorney
Department of Labor

APRIL 1988

US GOVERNMENT PRINTING OFFICE 1988

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1242%3A2. Public record. Not legal advice.