Amicus Curiae Brief — Firestone Plastics Co. v. United States Department of Labor

INDEX

Page

I. Inveresr or Amicus CURIAE ........cccccccccees 2

II. Reasons ror GRANTING THE WRIT .............. 4

Tue Covrr Betow Erroneousty INTERPRETED

THE AcT’s FeasisiLiry RequirEMENTS CREATING

a ConrFiict witH aT Least Two Unitep States

Courts or APPEALS ON AN ImPpoRTANT QUESTION

or “epERAL LAw Wuicu Has Nor Been, But

Sucutp Be, Serritep sy Tus Court .......... 4

(a) The Feasibility Requirements of the Act

and the Congressional Intent ............ 4

(b) The Secretary Failed To Comply with His

Statutory Mandate in Promulgating the

Vinyl Chioride Standard ................ 6

(c) The Decision Below Misinterprets the Feas-

ibility Requirements of the Act ......... 8

(d) The Decision Below Conflicts with the De-

cisions of Other Courts of Appeals ...... 11

BEE, CE ka dat d 6500s ca bne Beeeneétnaenertebs 12

LIST OF AUTHORITIES

Cases:

Chrysler Corporation v. Department of Transporta-

tion, 472 F.2d 659 (6th Cir. 1972) .......... 9, 10, 11

Essex Chemical Corporation v. Ruckelshaus, 486 F.2d

427 (D.C.Cir. 1973), cert. denied, — U.S. —, 94

eee PE Saesioe icieneaees Ses ctebinss 10

Gateway Coal Co. v. United Mine Workers of Amer-

BO, ME Che OOD LADUE occ cvcnscnseccdscetirtnns 2

Industrial Union Department, AFL-CIO v. Hodgson,

ee 8 oS | erry err Tere 5, 11

International Harvester Co. v. Ruckelshaus, 478 F.2d

Gy CURMAEY BEE, bua bsbckscceeyshedeinthaies 10

bid errr Pere

ii Index Continued

Page

Natural Resources Defense Council v. EPA, 489 F.2d

EE er anc cu chek sraese hers danes 9,10

Portland Cement Association v. Ruckelshaus, 486 F.2d

375 (D.C.Cir. 1973), cert. denied, — U.S. —, 41

DE SE ecu e RC in seeds bagaueh renee t 9, 10

Synthetic Organic Chemical Manufacturers Associa-

tion v. Brennan, — F.2d —, 2 OSHA 1402 (3d

Cir. December 17, Pa dvcccddvisenennse cheap 11

STaTuTEs:

Automobile Safety Act of 1966, 15 U.S.C. § 1381, et seq.

Elian Ss cas acbeeuks cacbeeeeenee 9,11

Clean Air Act Amen:iments of 1970, 42 U.S.C. § 1857f-1

(b) (1), et seq. (Supp. 1974) ................000. 9, 10

Federal Coal Mine Health and Safety Act of 1969, 30

ee Oi cs i sks neha acess ass 2

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

SE eG wih ak wad vescrnwesaincpeahee os 2, 4,11

ND ixtciciccdnewses 3, 4, 5, 9, 10, 11

MISCELLANEOUS:

S. Rep. No. 91-1282, 91st Cong., 2d Sess. ............ 5

116 Cong. Rec. 36512, October 13, 1970 .............. 5

116 Cong. Rec. 37622, November 17, 1970 ........... 4)

116 Cong. Rec. 32901-02 (September 21, 1970) ....... 10

IN THE

pant Court of the United States

OcToBER TERM, 1974

No. 74-1185

FIRESTONE PLastics CoMPANY, a Division of

THE FIRESTONE TIRE & RUBBER CoMPANY,

UNION CARBIDE CORPORATION,

and

THE Socrery OF THE Puastics Inpustry, Inc.,

Petitioners,

Vv.

Unttep States DEPARTMENT OF Labor, JoHN T. Dun-

Lop, SEcRETARY, U. S. DEPARTMENT oF Labor, and

' JoHN H. STenvDER, ASSISTANT SECRETARY OF LABOR

FOR OCCUPATIONAL SAFETY AND HEALTH,

and

AMERICAN FEDERATION OF LABOR AND CONGRESS OF

INDUSTRIAL ORGANIZATIONS AND INDUSTRIAL

Unton DeparTMENT, AFL-CIO,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

oe

BRIEF AMICUS CURIAE OF THE NATIONAL ASSOCIA-

TION OF MANUFACTURERS OF THE UNITED

STATES OF AMERICA IN SUPPORT OF THE

PETITION FOR A WRIT OF CERTIORARI

With consent of the parties, the National Associa-

tion of Manufacturers of the United States of America

respectfully sibmits this brief as amicus curiae in sup-

port of the petitioner.

2

L

INTEREST OF AMICUS CURIAE

The National Association of Manufacturers

(‘*‘NAM”’) is a non-profit voluntary business associa-

tion, organized as a membership corporation under

the laws of the State of New York. It is composed of

approximately 13,000 manufacturing and related con-

cerns of all sizes located throughout the United States

and represents a substantial portion of this nation’s

industrial employment. Because of the broad scope

and application of the Occupational Safety and Health

Act of 1970 (84 Stat. 1593, 29 U.S.C. § 651, et seq.)

(the ‘‘Act’’), substantially all NAM member concerns

are subject to the provisions of the Act and will be

directly affected by the decision in this case.

In the interests of its membership, the NAM has

appeared as amicus curiae in suits of significant na-

tional concern. For example, this Court recently

granted the NAM’s motion for leave to file a brief

amicus curiae in Gateway Coal Co. v. United Mine

Workers of America, 412 U.S. 903. (1973), a suit

brought under the Labor-Management Relations Act

and also involving the Federal Coal Mine Health and

Safety Act of 1969. Virtually all of the member con-

cerns of. the NAM have a real and direct interest in

the instant litigation and believe that, as before, the

views of the NAM, its experience with the critical

issues involved herein and its general manufacturing

and technical expertise may be of assistance to the

Court.

_ Issues of national importance which are of direct

concern to the NAM and its members are presented

because the Act applies to every employer engaged in

a business affecting commerce. The, Act empowers

/

3

the Secretary of Labor to regulate, through the adop-

tion of safety and health standards, essential opera-

tions of virtually every business and industry in the

United States. Moreover, because polyvinyl] chloride

‘*finds its way to companies which constitute over 10%

of the national economy,’’* many NAM members

which manufacture or use polyvinyl chloride products

are confronted with the imminent possibility that poyl-

vinyl chloride will become unavailable or its manufac-

ture will be drastically curtailed. The resultant effect

on the national economy could be incalculable (J.A.

2359). Although the case raises many significant is-

sues, this brief will consider only the proper interpre-

tation of the feasibility requirement of Section (6)

(b) (5) of the Act. The other issues are being treated

in other briefs.

Although this case deals with a specific occupational

safety and health standard, viz., vinyl chloride, if the

construction and interpretation of the Act by the court

below is correct, the Secretary, in effect, can disregard

the statutory mandate contained in Section 6(b) (5)

of the Act (29 U.S.C. 655(b)(5)) which requires the

Secretary to give due consideration to economic and

technological feasibility factors in promulgating stand-

ards dealing with toxic substances and harmful phys-

ical agents and predicate such standards essentially on

medical considerations. Thus, the ramifications of the

decision below are not limited to the vinyl chloride in-

dustry but can have application to many other indus-

tries which are subject to the Act.

Accordingly, the NAM has proper interest in the

resolution of the issues before the Court in this case.

1 OSHA’s Final Environmental Impact Statement (J.A. 3350).

(References to ‘‘J.A. ....’’ are to the Joint Appendir filed in the

court below.)

4

II.

REASONS FOR GRANTING THE WRIT

THE COURT BELOW ERRONEOUSLY INTERPRETED THE ACT‘S

FEASIBILITY REQUIREMENTS CREATING A CONFLICT

WITH AT LEAST TWO UNITED STATES COURTS OF AP-

PEALS ON AN IMPORTANT QUESTION OF FEDERAL LAW

WHICH HAS NOT BEEN, BUT SHOULD BE, SETTLED BY

THIS COURT.

The decision below, in effect, holds that the Secre-

tary of Labor, when adopting a health and safety

standard, may elect to ignore or reject all evidence

relating to technological and economic feasibility and

may predicate such a standard essentially on medical

and health considerations. This conclusion is contrary

to the express provisions of the Occupational Safety

and Health Act of 1970 and the Congressional intent

as manifested by the legislative history of the Act.

Moreover, it is clearly contrary to decisions in other

United States Courts of Appeals. It is, therefore,

necessary for this Court to construe the Act, thereby

clarifying the role of the Secretary in promulgating

standards, resolving the conflict among circuits, and

providing the essential criteria by which courts of ap-

peals will review and rule upon the validity of occu-

pational safety and health standards.

(a) The Feasibility Requirements of the Act

and the Congressional Intent

Section 6(b)(5) of the Act (29 U.S.C. § 655(b) (5) )

provides in part that:

‘‘The Secretary * * * shall set the standard which

most adequately assures, to the extent feasible, on

the basis of the best available evidence, that no

employee will suffer material impairment of health

* &© &@ #99

The legislative history underlying this provision

demonstrates that the Secretary is required to promul-

a

5

gate feasible standards. As Senator Javits, author of

the amendment from which the feasibility requirement

was taken, explained:

‘‘As a result of this amendment, the Secretary, in

setting standards, is expressly required to con-

sider feasibility of proposed standards. This is

an improvement over the Daniels bill, which might

be interpreted to require absolute health and safety

in all cases, regardless of feasibility, and the ad-

ministration bill, which contains no criteria for

standards at all.’”’ (S. Rep. No. 91-1282, 91st Cong.,

2d Sess., at 58)

This expression of Congressional intent—that occupa-

tional safety and health standards be technologically

and economically feasible—is also manifested by then

Senator Saxbe’s comment that safety and health stand-

ards should not be instituted at the sacrifice of indus-

try’s ability to remain productive and competitive

(116 Cong. Ree. 36512, October 13, 1970).

Further indications that Congress did not intend

standards promulgated by the Secretary to assure ab-

solute health and safety independent of feasibility

considerations are evidenced by the remarks of Sen-

ator Dominick when proposing the clarifying amend-

ment to the act, which was ultimately enacted as part

of Section 6(b)(5). Senator Dominick stated that

the purpose of his amendment was to ensure that only

those steps which are feasible and practical to provide

a safe working atmosphere can be required of the em-

ployer (116 Cong. Ree. 37622, November 17, 1970).’

2The District of Columbia Circuit in Industrial Union Depart-

ment, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974), after

reviewing the legislative history of the Act, confirmed that Con-

gressional intent requires safety and health standards to be tech-

nologically and economically feasible (499 F.2d at pp. 477-78).

Da le a lll Nak

i Be te aa an it eae ey eee F we fe SIF VT

6

(b) The Secretary Failed To Comply With His Statutory Man-

date in Promulgating the Vinyl Chloride Standard

Despite a clear expression of legislative intent, the

Secretary when promulgating the vinyl chloride stand-

ard failed to follow the statutory mandate with respect

to technological and economic feasibility.

The record evidence uniformly established, without

contradiction, that with present or anticipated tech-

nology the attainment of very low concentration levels

in the vinyl chloride and polyvinyl chloride industries

is infeasible? Indeed, OSHA’s own engineering

studies confirmed this conclusion,’ determining that at

a 1 ppm exposure level, 100 percent of the industry

would be in danger of being forced to close (J.A. 3587 is

Even at the higher exposure levels of 10 to 15 ppm,

the OSHA engineering study concluded that approxi-

mately 60 percent of the industry would be so endan-

gered (J.A. 3587). Moreover, in the preamble to the

standard, the Secretary not only acknowledged the

uniform conclusions reached by these studies but

‘‘agree[d]’’ that neither presently nor ‘tin the near

3 See, ¢.g., J.A. 1048, 755, 746, 166, 1958, 1987, 2303, 2426-27,

9704, 565, 933, 1331-32, 1560-62, 368, 3584, 2982.

4 See, for example, the OSHA-commissioned Snell Report (J.A.

3584, 3585) :

‘‘ Achieving ‘No Detectable’ Levels of VCM Principally

Through Engineering Means Is Judged Not Feasible With

Present Technology Both in the VCM and PVC Sectors.

* € *

““® * * Significant Engineering Uncertainty or Infeasibil-

ity Beyond 15-25 PPM Ceiling and 10-15 TWA for the PVC

Industry.”’

See also Exhibit VI-1 of the Snell Report which noted that VCM

exposure levels within the range of 10-15 ppm TWA are subject

to high engineering risks or are not feasible (J.A. 3587).

OIF LILI RE,

7

future’’ would it be feasible technologically to achieve

a 1 ppm exposure level (J.A. 3).

Similarly, the Secretary failed to follow the statu-

tory mandate with respect to economic feasibility and

ignored entirely the overwhelming evidence of the eco-

nomic infeasibility of a 1 ppm standard. There is no

suggestion anywhere in the final standard or its pre-

amble that the Secretary even considered OSHA’s or

industry’s economic studies. However, this uncontro-

verted evidence confirmed that the cost of compliance

would be prohibitive and the economic impact on the

national economy would be devastating.’ Thus, for

example, a study conducted by General Motors con-

eluded that should polyvinyl chloride products become

unavailable or drastically curtailed, the disruption to

the national economy could be incalculable. It could

affect the employment of as many as 450,000 employees

at General Motors alone (J.A. 2359). The record fur-

ther demonstrates that if the entire industry is shut

down because of an infeasible standard, the resulting

economic impact to the United States economy would

equal approximately $65 to $90 billion of lost domestic

production and a reduction in employment of about

1.7 to 2.2 million jobs (J.A. 2617, 2620). An additional

result would be economic hardship of large magnitude

5The Final Environmental Impact Statement prepared by

OSHA concluded that a standard requiring exposures to be re-

duced to 1 ppm would not be economically feasible : ‘*The capital

costs in polymer plants are likely to be substantial. Plants in this

industry are so diverse that some may lose their competitive posi-

tion, especially smaller firms with older equipment whose opera-

tions are already marginal. * * * Several employers may find it

necessary to close operations, concentrating the industry into

fewer companies and causing disruptions of several markets.’’

(J.A. 3344-45)

8

creating severe economic dislocations in many local

6

areas.

In sum, the Secretary completely failed to take cog-

nizance of the adverse impact of the new standard on

the structure of the vinyl chloride industry, on prices

in a time of rampant inflation, on the economy gener-

ally, and on foreign and domestic competition.

(c) The Decision Below Misinterprets the Feasibility

Requirements of the Act

The court below sustained the vinyl chloride stand-

ard by interpreting and construing the Act so as to

permit the Secretary to frame a standard which has the

effect of forcing industry to develop and create ‘‘new

technology”’ regardless of presently known and exist-

ing technological considerations or the economic con-

sequences thereof. As the language of the Act and its

underlying legislative history indicate, such a conclu-

sion is contrary to this Act’s mandate and, in effect,

grants the Secretary unbridled discretion to adopt

standards which are infeasible on the basis of present

or reasonably foreseeable technology and which ignore

all evidence with respect to their economic ramifica-

tions.

* This result was confirmed by the American Footwear Indus-

tries Association (J.A. 1642-64): ‘‘If the footwear industry shut

down the harshest consequences would be felt in small towns and

rural areas. * * * An immediate effect * * * would be felt most

acutely in areas such as Maine, Massachusetts, Missouri, New

Hampshire, New York, Pennsylvania, Tennessee and Wisconsin.

In those states there are heavy concentrations of factories pro-

ducing footwear, and in many instances this production accounts

for a large share of the income of the smaller cities’ (J.A. 1647-

@ 48).

9

Unable to refer to any legislative history to buttress

its interpretation, the court below merely cited two in-

apposite cases, neither of which involved the Act here

in question.’ These citations demonstrate that the

court below has not only borrowed what may be re-

ferred to as the ‘‘technologically forcing purpose’

concept from cases involving the Clean Air Act Amend-

ments of 1970 (84 Stat. 1690, 42 U.S.C. § 1857f-1(b)

(1), et seg. (Supp. 1974)) and the Automobile Safety

Act of 1966 (80 Stat. 718, 15 U.S.C. § 1381, et seq.

(Supp. 1974) ), but, in so doing, it misapplied and mis-

construed that concept.

A juxtaposition of the language and legislative his-

tory of the Occupational Safety and Health Act with

the language and legislative history of these statutes

demonstrates that Congress disavowed the idea that

Section 6(b)(5) contains a ‘‘technologically forcing

purpose’. The early Senate bill, which rejected a

feasibility requirement for the proposed Occupational

Safety and Health Act was repudiated by the Senate.

A bill containing what is now the Section 6(b) (5)

feasibility requirement was substituted. By contrast,

when Congress did intend a ‘‘technologically forcing

purpose’’, it expressly so provided. As Portland Ce-

ment Association v. Ruckelshaus, 486 F.2d 375, 391

(D.C.Cir. 1973), cert. denied sub nom., Portland Ce-

ment Corporation v. EPA, — U.S. —, 41 L.Ed.2d

226 (1974), and Natural Resources Defense Council,

Inc. v. EPA, 489 F.2d 390, 411-12 (5th Cir. 1974),

7 Chrysler Corporation v. Department of Transportation, 472

F.2d 659 (6th Cir. 1972), and Natural Resources Defense Coun-

cil, Inc. v. EPA, 489 F.2d 390 (5th Cir. 1974), cert. granted sub

nom. Train v. Natural Resources Defense Council, Inc., — U.S. —

42 L.Ed. 29, 46 (1974).

10

cert. granted sub nom., Train v. Natural Resources

Defense Council, Inc., — US. —, 42 L.Ed.2d 46

(1974), make abundantly clear, Congress in adopting

the final language of the Clean Air Act Amendments

of 1970 expressly rejected language virtually identical

to the language on feasibility incorporated into Sec-

tion 6(b)(5) of the Act.* Of even more importance,

the Portland Cement case also establishes that when a

“technologically forcing purpose’’ exists, the ‘‘fore-

ing’’ must involve projections ‘‘based on existing tech-

nology * * * and cannot be based on ‘crystal ball’ in-

quiry’’ (486 F.2d at 391).°

Finally, the Court’s reliance upon Chrysler Corpo-

ration v. Department of Transportation, 472 F.2d 659

8 Senator Muskie, the Senate sponsor of the Clean Air Act

Amendments, made comments in support of the final language of

that Act which are diametrically opposed to the comments of

Senator Dominick and then Senator Saxbe on the final language

of Section 6(b)(5) with respect to the issue of whether standards

must be technologically feasible. See, e.g., 116 Cong. Ree. 32901-

CZ (September 21, 1970).

® See also, Essex Chemical Corporation v. Ruckelshaus, 486 F.2d

427, 433 (D.C. Cir. 1973), cert. denied sub nom. Appalachian

Power Co. v. EPA, — US. —, 40 L.Ed.2d 558 (1974) (wherein

that court stated that ‘‘an achievable standard is one which is

within the realm of the adequately demonstrated * * * and which

[is] not at a level that is purely theoretical or experimental

*** ’’) See, further, International Harvester Co. v. Ruckels-

haus, 478 F.2d 615, 629 (D.C. Cir. 1973), which demonstrates that

when Congress established a technologically forcing purpose in an

environmental statute, it also provided for a statutory escape hatch

to allow a suspension of the ‘‘technologically forcing’’ standards

if industry could not achieve them. That no suspension provision

appears in the Occupational Safety and Health Act of 1970 is

convineing evidence that Congress never intended to force tech-

nology in standard setting under the Act.

TOES REPRE HN S:

ors wifitteessane names

11

(6th Cir. 1972), is equally erroneous. The statute at

issue in the Chrysler case was the Automobile Safety

Act of 1966 which is significantly different from the

Act at issue in this case. Unlike the Occupational

Safety and Health Act of 1970, the Automobile Safety

Act, in providing for ‘‘technologically foreing”’ stand-

ards specifically granted its agency the power to specify

a later effective date for meeting a ‘‘technologically

foreing’’ standard. Such a power was expressly pro-

vided to ensure that ‘‘economie and engineering im-

possibility’? would not cause a manufacturer to be put

‘‘out of business’’ (472 F.2d at 673-73).

(d) The Decision Below Conflicts With the Decisions

of Other Courts of Appeals

That Section 6(b) (5) of the Act is now ripe for this

Court’s interpretation and construction is manifested

by the conflict presently existing between at least two

United States Courts of Appeals on this important

question of federal law. The District of Columbia

Circuit has held in Industrial Union Department, AF L-

CIO v. Hodgson, 499 F.2d 467 (D.C.Cir. 1974), that

Section 6(b)(5) prohibits promulgation of a standard

which necessitates for compliance ‘‘protective devices

unavailable under existing technology’”’ *° or which were

promulgated ‘without regard for their economic im-

pact’? or which were ‘prohibitively expensive’ (499

10 The District of Columbia Circuit’s holding with respect to the

necessity for promulgating a standard that could be met with

‘‘existing technology’? was followed by the United States Court

of Appeals for the Third Circuit in Synthetic Organic Chemical

Manufacturers Association v. Brennan, — F.2d —, 2 OSHC 1402,

1406 (3d Cir. December 17, 1974).

eres ree ae ee Sree

12

F.2d at 477-78; emphasis supplied). As demon-

strated above, the Second Circuit in this Case con-

eluded that the Secretary could promulgate valid

standards ‘‘which require the development of new tech-

nology” * and ignored entirely questions of economic

feasibility.

1.

CONCLUSION

For the foregoing reasons, and for the reasons set

forth by the Petitioners, this Court is respectfully re-

quested to grant the Petition for Writ of Certiorari.

Respectfully submitted,

NATIONAL ASSOCIATION OF MANUFACTURERS

OF THE UNITED STATES OF AMERICA

By RicHarp D. Gopown

General Counsel

Myron G. Hirt, JR.

Assistant General Counsel

776 F Street, N.W.

ashington, D. C. 20006

March, 1975

—_——

11 ‘*Congress does not appear to have intended to protect em-

ployees by putting their employers out of business—either by re-

quiring protective devices unavailable under existing technology

or by making financial viability generally impossible’ (499 F.2d

at 478).

12 Decision below, p. 18.