Opposition Brief — OIL, CHEMICAL AND ATOMIC WORKERS INT. U. V. DUNLOP (Nos. 75-71, 75-75)

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SUPREME COURT, tik ti

Supreme Court of the United States

OcToBER TERM, 1974

No. 74-1443

OIL, CHEMICAL & Atomic WorKERS INTERNATIONAL

Union, AFL-CIO, er A., Petitioners,

JoHN T. Dunwop, Et Au., Respondents.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Third Circuit

BRIEF FOR RESPONDENTS SYNTHETIC ORGANIC

CHEMICAL MANUFACTURERS ASSOCIATION

ET AL., IN OPPOSITION

Ropert C. BARNARD

Donatp L. Morgan

CHARLES F, Lettow

1250 Connecticut Avenue,

Washington, D.C. 20036

Attorneys for Respondents

Synthetic Organic Chemical

Manufacturers Association,

et al.

Of Counsel:

CLEARY, GOTTLIEB, STEEN & HAMILTON

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

June 27, 1975

Press or Byron S. ADAMS PriNTING, INC., WASHINGTON, D.C.

TABLE OF CONTENTS

Page

CRN TOBE | oa van.nh n050 0664 Chae icenbecssexries 1

PO is 0000400 60.0.5 s bona dane eehed hear eens 3

Quasttens PARED 5... ci secs sivessvarsosagevevers 3

SEAL TPE ovine bees cet ces ceeds neleterstes ss 3

RAS CP TC oes cke csc ccavectavds biedaees 3

A. The Emergency Temporary Standard ........ 4

B. Administrative Proceedings for the Permanent

a ENE RE Spe ee mer ree ye My ee 6

C. The Decisions of the Court of Appeals ...... 8

hs ee Be I io ho da Ss de gissecnes 8

2. The Subsequent Decision ............ 10

BRNO ods kdktawdaedtcendbetdeneskiaveneweuers 12

A. There Are Important Issues Deserving of This

CORTE PE SS Senmccnapacsteceneacaces 12

B. HRG-OCAW Improperly Seek To Frame in the

Abstract Questions Respecting Whether the

OSHA Regulations Are Appropriate ‘‘Per-

formance’’ Standards Under the Act ........ 13

1, The Present Standards Are ‘‘ Expressed

in Terms of Objective Criteria and of

the Performance Desired’’, Within the

dg ey eee 14

2. HRG-OCAW Has Heretofore Always

Framed the ‘‘Performance’’ Standard

Issue in Terms of a ‘‘Zero Exposure’’.. 17

3. The Act Explicitly Grants Discretion

to OSHA To Adopt a Performance

Standard or To Employ a Substitute .. 19

FEVERS FLIED ALLELE PENT” LITE SLE NOM EOL GIG IN EIEN LE LEONG 7" ae

ii Table of Contents Continued

Page

4. Experience With OSHA’s Prior Regula-

tion of EI as an Air Contaminant Was

Not Properly Evaluated by OSHA in

the Rulemaking Proceedings, but the

HRG-OCAW Petitioners Seek To Draw

an Erroneous Conclusion From This

DUE «anc vin cckncaniivsiuchys 21

C. The Act Does Not Require OSHA To Promul-

gate Monitoring Requirements at This Partieu-

lar Time When Such Requirements Have Not

Yet Been Developed or Identified ............ 24

CN SL pean ike be Oe Muse is OR bo eh 27

CITATIONS

Cases:

Associated Industries of New York State v. Depart-

ment of Labor, 487 F.2d 342, 348-349 (2d Cir. 1973) 17

Dry Color Mfrs.’ Ass’n v. Department of Labor, 486

ek ee Ses We oa ok o's Oh kc beeen nes 6, 7

Oil, Chemical & Atomic Workers International Union — .

v. Brennan, Civil Action No. 730-73 (D.D.C., filed

pi ae | ee Pee eee een eee Sree 5

Ou, Chemical & Atomic Workers International Union

v. Brennan, Civil Action No. 2127-73 (D.D.C., filed

OCU Ss SPORE are bccn Web recaneaboceess 7

Synthetic Organic Chemical Mfrs. Ass’n v. Brennan,

503 F.2d 1155 (3d Cir. 1974), cert. dented, — U.S.

ont ee Ok Oe Ee EROED + decrsbaaanuawenaes us 2, 3,8

STATUTES:

The Oceupational Safety and Health Act of 1970

pik ee eg err eee 2

29 U.S.C. $655(a) ...... (as ebedinn oe awn 21, 22

See: OD been debe dvweoxwues passim

BR st ee eee passim

RE ef > eran ae 22, 23

Se BAe EY vo at'tn-0e's Chk cones a neeend 4

St MORE MIRED n.ke So weedeusansncciawss 6,7

SP Me ED a Soke kein Pivenaceaehes 9

a Shem ~

Table of Contents Continued ili

Page

Walsh-Healey Act

eh ae ES ee rrr rrr res 21

Cope or Feperat REGULATIONS:

29 (.F.R. § 1910.93, Tables G-1, G-2 & G-3 ........... 22

99 OF RB. GE IDIOGBCD onc ccvcccncccccsnccvcvecce 2

SF OF, Bee ev cb vcincctavercscosvewnavscess 4

FrepeRAL Reoister NOTICES:

37 Fed. Reg. 13286 (July 6, 1972) ...........ceeeees 4

38 Fed. Reg. 4037 (February 9, 1973) .........+-+-- 5

38 Fed. Reg. 10929 (May 3, 1973) ...........+--0eee 5

39 Fed. Reg. 3756 (January 29, 1974) .............. 2,4

MISCELLANEOUS:

H. R. 843, 91st Cong., Ist Sess. (1969) ............-. 15

H. R. 3809, 91st Cong., Ist Sess. (1969) ............. 15

H. R. 4294, 91st Cong., Ist Sess. (1969) ............. 15

H. R. 13373, 91st Cong., Ist Sess. (1969) ............ 15

H. R. Rep. No. 91-1291, 91st Cong., 2d Sess. (1970) .. 16

Hl. R. Rep. No. 91-1765, 91st Cong., 2d Sess. (1970)

(Conference Report) ..........cceeccccceveeees 16

S. 2193, 91st Cong., Ist Sess. (1969) .............0+: 15

S. 4404, 91st Cong., Ist Sess. (1969) ................ 15

S. Rep. No. 91-1282, 91st Cong., 2d Sess. (1970) ..... 16

116 Cong. Rec. 37,632 (daily ed., November 17, 1970).. 16

116 Cong. Ree. 38,723-38,733 (daily ed., November 24,

BR Re rhe aims mcr PUR i ne ore ee eS 16

4 Oceup. Safety and Health Rep. 732, 752-59 (Novem-

ee Sh, TPR) aks rkwehes Voeea pwd easonegiessws 12

Occupational Safety and Health Administration, Draft

Environmental Impact Statement on Proposed

Regulation: Handling of Certain Carcinogens, at

Tt PB. PP rerrrr irr Tri rs rere 17

Occupational Safety and Health Administration, Sup-

plement to Final Environmental Impact Statement

on Proposed Regulation: Handling of Certain Car-

PONE Crier re eer ee 25

IN THE

Supreme Court of the United States

OctToBerR TERM, 1974

No. 74-1443

Oi, CHEeMiIcaL & Atomic WoRKERS INTERNATION AL

Union, AFL-CIO, Et AL., Petitioners,

JoHN T. Dunwop, ET AL., Respondents.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Third Circuit

BRIEF FOR RESPONDENTS SYNTHETIC ORGANIC

CHEMICAL MANUFACTURERS ASSOCIATION,

ET AL., IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals for the Third

Circuit is reported at 506 F.2d 385. The opinion was

issued in three consolidated cases (petitions for re-

view) brought by three different groups of petitioners

to review a set of regulations promulgated by the As-

sistant Secretary of Labor for Occupational Safety &

IE 5 00 HOGI LLL PE SG He LB HEINEY EOIN OIE SALONA LE RS

Health." The Court of Appeals had issued an earlier

opinion in a closely-related segment of one of these

same three consolidated cases. This earlier opinion is

reported at 503 F.2d 1155. The bifurcated nature of

the proceedings in the Third Circuit came about after

the three groups of petitioners and OSHA had joined

together in a stipulation and motion to consolidate the

eases. A Motion for Stay of the portion of the OSHA

regulations pertaining to ethyleneimine (‘‘EI’’) was

made. During a hearing on the Motion for Stay, the

Court of Appeals sua sponte ordered that the portion

of the regulations subject to the stay motion be con-

sidered on an expedited basis and be severed from the

rest of the consolidated cases. The expedited and sev-

ered portion of the cases was subject of the first opin-

ion of the Court of Appeals. Thereafter, a petition

for writ of certiorari was taken from the first opinion;

the petition was denied by this Court on March 17,

1975.”

The rulemaking order promulgating the regulations

(29 C.F.R. §§ 1910.93c-p) is found at 39 Fed. Reg. 3756

(January 29, 1974), and is also set out in Appendix B

to the Petition filed in this case.

The Occupational Safety and Health Act, 29 U.S.C. §§ 651

et seq. is written in terms of a grant of authority to the Secretary

of Labor. The Secretary has delegated his responsibilities under

the Act to the Assistant Secretary of Labor for Occupational

Safety & Health. For purposes of simplicity, this brief will hence-

forth use the terms ‘‘the Secretary’’ or ‘‘OSHA’’ to refer both to

the authority granted by the Act and to the actual official who

promulgated the regulations.

2 Synthetic Organic Chemical Mfrs. Ass’n v. Brennan, No. 74-789.

Concurrently with this Brief in Opposition, the SOCMA respond-

ents are filing a conditional Petition for Rehearing of the Order

Denying Certiorari in No. 74-789.

ici ae!

JURISDICTION

The jurisdictional requisites are adequately set out in

the Petition.

QUESTIONS PRESENTED

1. Whether OSHA in promulgating similar oc-

cupational health regulations for each of fourteen

chemicals said to be carcinogens or to have a eareino-

genic ‘‘potential’’,* could rely largely on ‘work prac-

tice’’ requirements, in contrast to ‘‘performance”’ re-

quirements.

2. Whether it was ‘“‘appropriate’’ under the Act

for OSHA to defer inclusion of provisions for moni-

toring in standards for particular chemicals pending

technological development and identification of moni-

toring measures.

STATUTE INVOLVED

Petitioners have set out as Appendix C to their Pe-

tition paragraphs 6(b) (5) and 6(b) (7) of the Occupa-

tional Safety and Health Act of 1970 (‘‘the Act’’), 29

U.S.C. § 655(b) (5), (b)(7). Section 6 of the Act in

its entirety seems pertinent to this Petition; Section 6

is set out as Appendix A to this Brief, infra, at la.

STATEMENT OF THE CASE

The regulations involved in the present Petition are

‘‘permanent”’ regulations promulgated under subsec-

3 OSHA based regulation of some of the chemicals such as

ethyleneimine (‘‘EI’’) upon a finding of ‘‘earcinogenie potential’’

(see Pet. Appx., at 18a), and not upon a finding of carcinogenicity

in man. The validity of OSHA’s finding of such a ‘‘potential’’

especially as tested against its own criterion for making such a find-

ing, was addressed in the earlier portion of this case to reach this

Court. Synthetic Organic Chemical Mfrs. Ass’n v. Brennan, No.

74-789, cert. denied, — U.S. —, 95 8. Ct. 1396 (1975).

tion 6(b) of the Act. These regulations were, however,

preceded by so-called ‘‘emergency temporary stan-

dards”’ issued by OSHA under subsection 6(¢c) of the

Act. The positions of the parties at this juncture can

best be understood and assessed by a brief review of

the entire chain of events leading to the decision of the

Court of Appeals for which review is being sought.

Petitioners have set out the regulation for EI (29

C.F.R. § 1910.937) as an example of regulations issued

for each of the fourteen chemicals and have made vari-

ous references to EI in their Petition. Therefore,

specific references will be made in the following state-

ment to the steps taken respecting EI at various stages

in the proceeding.

A. The Emergency Temporary Standard

OSHA began examining the prospective regulation

of certain suspected occupational carcinogens as early

as the first part of 1972.4. In May, 1972, OSHA wrote

to the National Institute of Occupational Safety and

Health (‘‘NIOSH’’) requesting ‘‘all available inform-

ation of known carcinogens used in industry’’—noting

specifically nine chemicals not including El—and re-

questing ‘‘your recommendations for handling these

substances with regard to writing standards’”’.

NIOSH, an agency in the Department of Health,

Education and Welfare, created by the Act to provide

scientific assistance to OSHA, did not respond that any

emergency existed. Rather, it published in the Federal

that it wished to develop ‘‘criteria documents” (a

*The background of the promulgation of the EI standard was

reviewed by OSHA in the preamble to the permanent standard, at

39 Fed. Reg. 3756 (Jan. 29, 1974) (see Pet. Appx. at 14a-16a).

normal step in the formulation of permanent stan-

dards) on fifteen chemicals, including EI. NIOSH

said it believed these chemicals were ‘‘known or sus-

pected carcinogenic substances’’, and that it would wel-

come information on these substances within the fol-

lowing ninety days.

On December 29, 1972, the Health Research Group

and the Oil, Chemical & Atomic Workers International

Union (“‘HRG-OCAW’”’), with considerable publicity,

petitioned OSHA to issue a single emergency tempo-

rary standard covering ten of the fifteen chemicals

mentioned by NIOSH’s July 6, 1972, notice in the

Federal Register. The HRG-OCAW petition proposed

a standard of a sort, i.e., it ‘‘propose[d] a standard of

zero tolerance permitting no exposure whatsoever’’.

Pet. Appx. at 20a. It did not include EI within the

group of ten chemicals to be subject to the broad zero

tolerance standard. On February 9, 1973, OSHA pub-

lished in the Federal Register notice of the filing of the

HRG-OCAW petition, along with the standard pro-

posed in their petition. OSHA invited public com-

ment by March 11, 1973, cn the petition and on the ten

chemicals named in it (38 Fed. Reg. 4037).

On April 17, 1973, HRG-OCAW brought a well-

publicized suit to compel OSHA to issue an emergency

temporary standard for the ten chemicals (not includ-

ing EI) listed in the petition filed with OSHA. Qi,

Chemical & Atomic Workers International Union v.

Brennan, Civil Action No. 730-73 (D.D.C., filed April

17, 1973). Shortly thereafter, OSHA did issue an

emergency standard, dated April 26, 1973, and pub-

lished May 3, 1973, at 38 Fed. Reg. 10929. The OSHA

emergency standard covered fourteen chemicals, in-

cluding four chemicals, among them EI, which were not

— “ Aarne ee! Catone meg RT ts ete 9 aS 1s

mentioned in the HRG-OCAW petition. The emerg-

ency standard imposed a set of uniform requirements,

applicable alike to each of the listed chemicals. Thus,

it adopted the format of the HRG-OCAW petition, but

it did not adopt the zero-tolerance standard set out in

the petition.

Thereafter, Petitions for Review of the emergency

temporary standard were filed in the United States

Court of Appeals for the Third Circuit by interested

chemical industry trade associations and a number of

individual chemical companies, and by HRG-OCAW.

In Dry Color Mfrs.’ Ass’n v. Department of Labor, 486

F.2d 98 (3d Cir. 1973), the Third Circuit vacated the

emergency temporary standard as to EI and as to 3,3’-

dichlorobenzidine (‘‘DCB’’) and remanded the pro-

ceedings to OSHA. The court held that the statement

of reasons and findings of fact proffered by OSHA to

support the emergency temporary standard were in-

adequate, and that it was adopting the remedy of va-

eating the standard ‘‘[i]n view of our considerable

doubts as to whether there is sufficient evidence in the

record to support the finding that DCB and EI are car-

cinogenic in man... .’’ (486 F.2d at 107 n.13.) HRG-

OCAW had contended that the Court should require

OSHA to incorporate a use-permit system which would

achieve zero exposure. The court found it unnecessary

to address this contention in light of its disposition of

the case. (486 F.2d at 108 & n.18.)

B. Administrative Proceedings for the Permanent Standard

Section 6(¢)(3) of the Act (29 U.S.C. § 655(¢) (3) )

requires OSHA to adopt a permanent standard within

six months of issuance of an emergency temporary

standard and provides that the temporary standard as

published shall serve as a proposed rule for the rule-

making proceeding. OSHA had begun to take the

procedural steps required to arrive at a permanent

standard prior to the Third Circuit’s decision of Octo-

ber 4, 1973, in the Dry Color case.

OSHA issued the emergency temporary standard as

a proposed permanent standard. Written comments

were invited. The rulemaking proceeding also involved

the formation of an advisory committee which, as the

Third Circuit subsequently said, ‘‘was instructed that

only one set of standards would be promulgated for all

fourteen chemicals, despite the substantial differences

in their properties and their industrial and laboratory

uses.”’ (Pet. Appx. at 8a.) The advisory committee

submitted its recommendation to OSHA, and these

recommendations were published in the Federal Regis-

ter on September 7, 1973. Public hearings were com-

menced immediately thereafter on September 11, 1973.

(Pet. Appx. at 6a.)

On November 29, 1973, by which date permanent

standards had not yet issued, HRG-OCAW again

brought an action for a declaratory judgment and man-

datory injunction against OSHA, alleging that it had

wrongfully failed to issue a permanent standard or,

alternatively, to revoke the emergency temporary stan-

dard, within six months as required by Section 6(¢) (3)

of the Act. Oil, Chemical &: Atomic Workers Inter-

national Union v. Brennan, Civil Action No. 2127-73

(D.D.C., filed November 29, 1973). HRG-OCAW

thereafter filed a motion for summary judgment, which

was set for hearing on January 29, 1974. On that date,

permanent standards were published in the Federal

EI, and the lawsuit was no longer prosecuted. The

permanent standards took the form of separate stan-

dards for each chemical although as the Third Circuit

noted ‘*[m]uch of the language, however, in the separ-

ate standards is merely duplication of that governing

all of the other chemicals’. (Pet. Appx. at 8a.)

The individual standards were also very similar in sub-

stamce to the emergency standard.

After OSHA issued these permanent standards,

three separate Petitions for Review were filed in

the Court of Appeals for the Third Cireuit—by the

Synthetic Organic Chemical Manufacturers Associa-

tion (“*‘SOCMA’’) along with other interested trade

associations and individual companies,® by HRG-

OC. AW, and by the Polyurethane Manufacturers Asso-

ciation (‘‘PMA’’). The petitioners in the Court of

Appeals joined with OSHA to stipulate and move for

consolidation of the actions. SOCMA then sought a

staw of the EI standard. At the hearing on the stay

motion, the Third Circuit panel swa sponte ordered

that consideration of the EI standard be expedited and

be severed from the rest of the consolidated cases. The

Court then issued a stay of the EI standard pending its

disposition on the merits.

C. The Decisions of the Court of Appeals

1. The EI Decision

Im its first decision,® issued on August 26, 1974, the

Third Circuit considered the validity of the OSHA

5 This group of petitioners in the Third Circuit will be collectively

referred to in this brief as ‘‘SOCMA’’.

® Synthetic Organic Chemical Mfrs. Ass’n v. Brennan, 503 F.2d

1155 (3d Cir. 1974), cert. denied, — U.S. —, 95 S. Ct. 847 (1975).

NEE AO Ye * veka tiahe tie oa

standard for EI. SOCMA, HRG-OCAW, and OSHA

had each filed briefs and participated in oral argument

on this phase of the case. The decision to a large

extent concerns itself with the scope of review man-

dated by subsection 6(f) of the Act, 29 U.S.C. § 655(f).

That subsection requires that an OSHA standard be

‘supported by substantial evidence in the record con-

sidered as a whole’. The Third Circuit admitted that

‘‘Tijt is clear that application of the substantial evi-

dence test to informal rulemaking was a deliberate

legislative compromise between the House and Senate

versions of the bill which became law’”’ (503 F.2d at

1158). Nonetheless, the court ruled that a narrower

standard of review was appropriate for what it called

‘legislative policy decisions’? by the Secretary. The

court apparently was of the view that with respect to

such ‘‘policy’’ decisions the statutory substantial evi-

dence criterion is not applicable and held that it is

sufficient for OSHA merely to demonstrate that it has

considered the ‘‘factors relevant under the statute’’

and ‘‘presently available alternatives’ before reach-

ing a decision (503 F.2d at 1160).

Then, despite the factual nature of the questions

posed respecting whether EI should be regulated as a

carcinogen based on ‘‘potential’’, the court applied its

very limited test of review for ‘‘policy’’ questions. It

thus did not review the evidence in the record respect-

ing any ‘‘potential’’, nor did it review the countervail-

ing evidence in the record. In particular, it did not

examine whether OSHA had followed its own stated

criterion for assessing carcinogenic ‘‘potential’’, even

assuming that the adoption of the criterion itself

(which occurred in this administrative proceeding)

MINI BRED a FART SFB POOLE ites CAD

was a ‘‘policy’’ judgment. The court did vacate the

special provisions in the EI standard for laboratories.’

2. The Subsequent Decision

Thereafter, the Third Circuit considered the remain-

ing portions of the case. Two of the three judges of

the Third Cireuit who had heard the EI case were

also on the panel of the court hearing the remaining

issues. On December 17, 1974, the court rejected a

challenge to OSHA’s determination to regulate three

of the other chemicals among the fourteen subject to

the standards. However, the court vacated the stand-

ard for one of these chemicals, on the ground that

OSHA had not complied with the statutorily-pre-

scribed procedures for use of advisory committees and

for publication of and opportunity for comment on

proposed or recommended standards.*

The court then turned to the HRG-OCAW conten-

tions. HRG-OCAW objected to ‘‘the Secretary’s

erroneous failure to order a performance standar¢

allowing no detectable worker exposure’? (Court of

Appeals Brief for OCAW-HRG petitioners, at 21),

*The court below vacated the laboratory standard for lack of

notice: ‘* We note that there was a lack of notice regarding OSHA’s

plans to make special provisons regarding EI’s use in research

laboratories. The Secretary’s notice did not advise that the agency

planned to make special provisions regarding EI use in laboratories.

Because of this, we hold that to the extent that the standards in

question relate to research laboratories, they will be vacated and

remanded to OSHA.’’ (503 F.2d at 1160.)

*The procedural objection was only raised by one petitioner,

PMA, with regard to the one chemical, MOCA®, (Pet. Appx. at

5a.)

alii ih ee va bs bl 7” v ” rarer

a ac ce ae APOE PIRES ED BET be

and recognized that the judgment of OSHA on such a

matter would be judged against the test adopted

earlier by the court for ‘‘policy’’ matters. (Jd.) Un-

derstandably, the court below considered HRG-

OCAW’s claim in the zero exposure context, and

held that OSHA’s decision not to adopt a performance

standard based upon zero exposure was ‘‘a reasonable

exercise of [OSHA’s] judgment in the policy-making

sphere’. (Pet. Appx. at 10a.)

OSHA had deferred imposition of monitoring re-

quirements pending development and identification of

analytical ‘‘techniques or instruments for environ-

mental monitoring ....’’ (Pet. Appx. at 28a.) The

court rejected a challenge to this deferral, remarking

that it would not upset a ‘‘pragmatic’’ judgment by

OSHA to seek prompt development of monitoring

methods ‘‘on a priority basis ....’’ (Pet. Appx. at 1la-

12a.)

HRG-OCAW had also objected to OSHA’s having

imposed general requirements for medical surveillance

by a physician, contending that the regulations should

‘*prescribe specific medical protocols and diagnostic

tests to be given employees who work with the chemi-

eals’’. (Pet. Appx. at 12a.) Here, the Third Circuit

noted that the chemicals varied in their effect and

while particular tests for specific chemicals seemed

appropriate, OSHA had not called for further study

or development. Accordingly, the court remanded each

of the fourteen separate standards insofar as medical

surveillance was concerned. (Pet. Appx. at 12a-13a.)

Pe 8 CIR BSCE LS OO RET REIMAN EARLS ETT ROD PO TS Te

——"

AP CELA EAE Pte CALE Sol EAE hi PRA BERS IAG NE ALAE ONAL A, IN tins

)

ARGUMENT

A. There Are Important Issues Deserving of this

Court's Attention

The Occupational Safety and Health Act is a compre-

hensive piece of legislation with far-reaching impact on

the nation’s economy, on people’s jobs, and on safety

in the workplace. The Secretary of Labor’s responsi-

bilities in setting occupational safety and health stand-

ards are the cornerstone of this legislation, and as such

proper promulgation of these standards and subsequent

careful judicial review are of considerable importance

to the nation.

This case involves a set of such regulations. As one

might expect, these particular regulations in their own

right have an impact on a substantial number of indus-

trial operations, as well as governmental, research,

and educational activities. Many more regulations of

a similar nature can be expected in the future.’ Accord-

ingly, the issues posed by the Petition here and by the

earlier Petition in No. 74-789 take on an added import-

ance,

The bifureated proceedings in the Third Cireuit have

served to sift out and te sharpen three legal questions

respecting which disagreement among the parties still

remains. Two of those questions are posed in this Peti-

tion. They are in over-simplified terms (1) whether

OSHA was required by the Act to frame the regulations

in terms of a ‘“‘performance’’ requirement or standard

and yot a ‘work practice”’ standard, and (2) whether it

was ‘“‘appropriate’’ under the Act for OSHA to defer

* OSHA has announced plans to set standards for 386 chemicals

in 23 chemical groups, with regulations similar to those at issue

here, over the next two years. 4 Oceup. Safety & Health Rep. 732,

752-59 (Nov. 21, 1974). The Petition at pages 20-21 also describes

OSHA’s planned rulemaking efforts for other chemicals.

inclusion of provisions for monitoring in standards for

particular chemicals pending technological develop-

ment and identification of monitoring measures. The

third question was presented by the Petition in No. 74-

789 which this Court denied on March 17, 1975, i.e.,

(3) whether the Act’s provisions for judicial review

under the substantial evidence test should be construed

as restricting review of *‘policy’’ issues, including such

factual issues as whether OSHA correctly applied its

own criterion for determining carcinogenic ‘poten-

tial’, Each of these legal issues necessarily is pre-

sented on the factual base provided by the administra-

tive proceedings. However, these legal issues do not

depend for their resolution upon technical determina-

tions, so they would not involve the Court in complex

scientific matters.

The SOCMA respondents suggest that this Court

should either grant petitions for writs of certiorari to

hear all three issues, or it should hear none of them.

Because of the Third Circuit’s bifurcation of issues in

the consolidated cases, this Court has already been pre-

sented with the scope-of-judicial-review issue in the

prior Petition (No. 74-789). To enable the Court to

consider together each of the three aforementioned in-

terrelated issues, with this Brief in Opposition to the

present Petition the SOCMA respondents have filed

concurrently a Petition for Rehearing of the Order

Denying Certiorari in No. 74-789.

B. HRG-OCAW Improperly Seek To Frame In the Abstract

Questions Respecting Whether the OSHA Regulations Are

Appropriate “Performance” Standards Under the Act

The HRG-OCAW petitioners would present this

Court with the abstract question of whether OSHA

improperly adopted for each of the fourteen chemicals

FESS RS ST RRS ee ET peng Fe TLS ASTRA EADIE FS BUTE

at et 6

being regulated a standard based largely on ‘‘work

practices”’ as contrasted to a ‘‘performance”’ standard.

The HRG-OCAW petitioners say that ‘‘section 6(b)

(5) and 6(b) (7) [of the Act] required a performance

standard, monitoring, and medical surveillance, as well

as appropriate protective equipment, labels, and warn-

ings’’. (Petition, at 14 (emphasis added).) HRG-

OCAW say the Third Circuit refused to focus on this

abstract performance-standard requirement, viewing

instead, and mistakenly, the question before it as

whether a particular performance standard (zero ex-

posure) was required.

There are three insurmountable difficulties with the

present HRG-OCAW position. First, the present

standard is in fact a ‘‘performance standard’’; there is

nothing in the Act to indicate that a ‘‘work practice’’

standard is not a performance standard within the

meaning of the Act. Second, HRG-OCAW has always

heretofore in these proceedings framed the issue in

terms of a specific, zero-exposure requirement, a re-

quirement which it called a performance standard.

And, third, even in the abstract the Act specifically

gives OSHA authority to adopt regulations based upon

requirements other than a performance standard. (Sec-

tion 6(b) (5).)

1. The Present Standards Are “Expressed In Terms

of Objective Criteria And of the Performance De-

sired’, Within the Meaning of the Act.

The Act simply says ‘‘[w]henever practicable, the

standard promulgated shall be expressed in terms of

objective criteria and of the performance desired”’.

(Section 6(b) (5).) HRG-OCAW would transmute this

sentence into a strict command to issue one particular

kind of ‘‘performance’’ standard, i.e., a regulation

stated in terms of a numerical limit on the quantity of

a given substance in the air, or in a liquid or solid mix-

ture.

The Act is not nearly so restrictive. Here, the stand-

ard is in fact ‘‘expressed in terms of objective criteria’.

For example, the objective criteria in the regulations

for EI include requirements for closed vessels for

chemical reactors, negative-pressure (vacuum) systems

for transfer of materials, air scrubbers, glove boxes,

closed sampling ports, restricted areas, protective cloth-

ing and respirators, and decontamination measures.

The standard applies to EI manufacture, processing,

repackaging, release, handling or storage, except re-

specting solid or liquid mixtures of less than 1% EI.

Moreover, there is nothing in the Act to indicate that

these are not also requirements which express the

‘‘nerformance desired’’.

The legislative history of the Act contains a few valu-

able clues as to what Congress intended in directing

OSHA ‘‘whenever practicable” to express its standard

in terms of ‘‘objective criteria’’ and of the “‘perform-

ance desired’’. In the 91st Congress, the initial bills to

enact a health and safety law in both the House and

Senate were split between those calling for standard-

setting by the Secretary of Labor ’° and those relying

upon an Occupational Safety and Health Board." The

debate in both the House and Senate focussed upon the

1 E.g., H. R. 848, 91st Cong., 1st Sess. (1969) ; H. R. 3809, 91st

Cong., Ist Sess. (1969) ; II. R. 4294, 91st Cong., 1st Sess. (1969); 8.

2193, 91st Cong., Ist Sess. (1969).

1H. R. 13373, 91st Cong., Ist Sess. (1969) ; 8. 4404, 91st Cong.,

Ist Sess. (1969).

% PETA nom A Aye . —— - =

Pee. ara SEALE LLNS LEN IE PORE HT PTE TH ESET OID PRI POTS a ean pe acrenar Resana Ce oe

propriety of reposing both the standard-setting au-

thority and the enforcement authority in the Secretary

of Labor.

None of the early bills contained provisions equiva-

lent to the Act’s present direction to state standards in

terms of ‘‘objective criteria’? and ‘‘performance de-

sired’’. The provision first appeared in the bill reported

out of the House Committee on Education and Labor.

See H. R. Rep. No. 91-1291, 91st Cong., 2d Sess. at 4

(section 7(a)(4)), 18-19 (1970). However, the provi-

sion was omitted from the floor substitute for the Com-

mittee bill, which substitute passed the House on No-

vember 24, 1970. 116 Cong. Ree. 38,723-38,733 (daily ed.,

November 24, 1970). The House-passed bill called for

standards to be set by an independent Board and not by

the Secretary of Labor. The bill reported by the Sen-

ate Committee on Labor and Public Welfare also had

been revised to inelude the provision requiring specifi-

eation of ‘‘objective criteria’? and ‘‘performance de-

sired’. S. Rep. 91-1282, 91st Cong., 2d Sess. at 7, 29

(1970). The Senate Committee bill called for stand-

ards to be set by the Secretary of Labor; the Commit-

tee bill passed the Senate without appreciable change.

116 Cong. Ree. 37,632 (daily ed., November 17, 1970).

The Conference Committee resolved the differences be-

tween the Senate- and House-passed versions in favor

of standards set by the Secretary of Labor, but along

with the provision under discussion requiring the Sec-

retary to express the standards in objective, definite

form. H. R. Rep. No. 91-1765, 91st Cong., 2d Sess. at

4-6, 33-36 (1970) (Conference Report).

Thus, the requirement for objectively-stated and

definite standards stemmed from a compromise with

provisions giving the Secretary of Labor standard-set-

—_

ting authority. The provision in referring to ‘“‘objec-

tive criteria’ and *‘ performance desired’’ does not call

only for regulations to be stated in terms of numerical

limits as HRG-OCAW would have it. Rather, the

focus is on specificity and objectivity so that persons

governed by the standard will know what is expected

of them and similarly that enforcement by the Secre-

tary (the standard-setter) can proceed more even-

handedly. Given the circumstances, it is no surprise

that OSHA considers these very explicit and definite

standards to be performance standards within the

meaning of paragraph 6(b) (5) of the Act.”

OSHA’s standards might indeed be objectionable,

but not on the ground that they somehow are not

‘‘objective’’ or do not state the ‘‘ performance desired’’,

2. URG-OCAW Has Heretofore Always Framed the

“Performance’’ Standard Issue In Terms of A

“Zero Exposure’

Throughout the proceedings before OSHA and before

the Third Cireuit, HRG-OCAW did not contend that a

performance standard as a generic matter was superior

to or more appropriate than a work-practice standard

2 This is the same compromise that produced the substantial-

evidence criterion for judicial review of OSHA’s rulemaking

orders, which criterion was the subject of the Petition in No. 74-789.

See the discussion of the judicial-review aspects of the compromise

supra, at 9; see also Associated Industries of New York State v.

Depariment of Labor, 487 F.2d 342, 348-349 (2d Cir. 1973) (opin-

ion by Friendly, J.).

*8See Occupational Safety and Health Administration, Draft

Environmental Impact Statement On Proposed Regulation: Hand-

ling Of Certain Carcinogens, at 20 (‘*The ETS [emergency tem-

porary standard] is a performance standard ....’’) (May 3,

1970).

TR atidtind> ~ ie CRS ENTE LT TEIN SR ERIE

or other requirement. Rather, HRG-OCAW always

argued for a zero-tolerance standard, which is a per-

formance standard, albeit an extreme one. Initially,

in early 1972 when HRG-OCAW filed with OSHA its

petition for an emergency standard it framed its single

proposed standard applicable across-the-board to each

3 of ten chemicals in terms of a zero-exposure standard,

not in terms of a general performance standard. (Pet.

Appx. at 20a.) And, thereafter, in the proceedings lead-

ing to adoption of the permanent standard, HRG-

OCAW supported instructions to the advisory commit-

tee that it consider only one standard for all fourteen

chemicals (see supra, at 7; Pet. Appx. at 20a-22a),

and argued that the one standard should be a zero-

; exposure standard.

Then in the Third Cireuit, HRG-OCAW similarly

objected to ‘‘the Secretary’s erroneous failure to order

« performance standard allowing no detectable level of

exposure’’ (Court of Appeals Brief for HRG-OCAW

Petitioners, at 21). They also explicitly stated to the

Third Cireuit that

“The standard [HRG-OCAW] sought is not a

guarantee that no exposure will ever result. It is,

however, a performance objective whose purpose

is to eliminate all measurable exposure which re-

sults from the design and forseeable operation of

a process.’’ (Id. at 30.)

And, further, HRG-OCAW told the Third Circuit:

‘*Perhaps the greatest irony respecting respon-

dent’s [OSHA’s] refusal to adopt a no measurable

exposure performance standard is that his final

standards did include a type of performance stan-

dard in the exemptions from regulation for certain

mixtures containing these carcinogens—precisely

BE eee CIN oe

Tew PERL REM LAOT S resy nn nr

the action which he concluded the record would

not support. Thus, the Secretary concluded that

for eight of the chemicals, mixtures containing less

than one percent of the chemical would be exempt

from regulation and for the other six the exemp-

tion is set at 0.1%."’ (Id. at 31.)

Given this background of OCA W-HRG’s petitions to

OSHA, positions expressed in the permanent rulemak-

ing proceeding, and arguments to the Third Circuit,

neither OSHA nor the court below should be faulted

for considering the HRG-OCAW petitioners’ claims in

terms of a zero-exposure or no-detectible-level standard.

3. The Act Explicitly Grants Discretion To OSHA To

Adopt A Performance Standard Or To Employ A

Substitute

In pertinent part, paragraph 6(b) (5) of the Act re-

quires OSHA to consider a performance standard, but

at the same time grants OSHA discretion to adopt a

substitute :

‘Whenever practicable, the standard promul-

gated shall be expressed in terms of ob jective cri-

teria and of the performance desired.”’ (Emphasis

added.)

Here, OSHA found that it was not **practicable”’ to

adopt the zero-exposure “performance”? standard ad-

vocated by HRG-OCAW, because “no possible expos-

ure to the carcinogens under any circumstances could

only be guaranteed by a total ban on the manufacture,

use (even for cancer research), and transportation of

the substances’, (Pet. Appx. at 21a.)

On the administrative record, OSHA said ‘“‘a safe

level of human exposure to any of the 14 carcinogens

cannot be established by application of present knowl-

@. ee s-

— PENTEL MOIS MNES INE TAA EEN CNET AEE GRIND. BNE NENT ERLE SPLINT ETT HEE LOBE NORTE

aS =

edge’. (Pet. Appx. at 20a.) Yet, on the other hand,

3 OSILA also said

‘a conclusion that safe levels do not exist seems

questionable in view of other studies, some in the

area of earcinogenicity which demonstrated that

below a certain amount of a single or eumulative

dosage, no deteetible harm is caused, or if harm is

caused, the extent of sueh harm will be of no prac-

ticable importance beeause the latency period prior

to manisfestation of harmful effects will be of

greater duration than the normid lifespan of man.”

(7d. at 21a (emphasis added ).)

In such cireumstances, where the precise acceptable

levels of exposure were debatable as a scientitie matter,

OSHA properly could rely on *twork practice’ require-

ments to mandate reduction of exposure to the regulated

chemicals to appropriate minimal levels;

** Accordingly, the intent of the standards is to

reduce exposure of workers to any of the listed

substances to the maximum extent practicable con-

sistent with eontinued use." (Jd. at 2a.)

This constitutes one of the circumstances contemplated

by Congress where OSILA could properly exercise the

diseretion given in paragraph 6(b)(5) of the Act to

determine a performance standard that was **practi-

eable”’.

As noted, the Third Cireuit understandably did not

address the general and rather abstract issue of whether

the particular standards OSHA adopted were perform-

ance standards or, if they were not, were they ** praeti-

able” alternatives, because the issue was not presented

to it. In the SOCMA respondents’ view the OCAW-

ILRG petitioners in this Court have framed the per-

formance-standard issue in expansive terms in an effort

———— bel . arRinrEtignys:

‘ ast SPER ee age

3 Ee IS REL OEE ER ORIEL SY! PEEP PELE"

BS me OT Rg CLEA NRT OR PAR RENEE ge SERN PERE CREST E NOL RPP

to gain yet “another bite at the apple’’, Le, OCAW-

HRG remains interested in pressing for zero-exposure,

but at this juncture they must approach the matter

baekhandedly by presenting the abstract issue of per-

formance standard versus work practice standard,

4. Experience With OSHA's Prior Regulation Of El

As An Atr Contaminant Was Not Properly Evalu-

ated By OSHA In The Rulemaking Proceedings,

But The HRG-OCAW Petitioners Seek To Draw

An Erroneous Conclusion From This Impropriet y

In the Petition, IRG-OCAW point out that shortly

after OSTLA’s creation, OSTLA had adopted numerical

performance standards for nearly 400 chemicals and

substanees as air contaminants. (Petition at 11 11,

17.) HRG-OCAW criticize the Third Cireuit for not

requiring OSILA to evaluate the experience under these

air contaminant standards in deciding whether or not

to rely on performance standards in these regulations.

In SOCMA’s view, criticism is warranted but not for

the reasons ITRG-OCAW suggest.

The 400 air contaminant standards had originally

been issued under the Walsh-Healey Act, 41 U.S.C.

§§ 95-45. The Oceupational Safety and Health Aet in

subsection 6(a) authorized OSHA to ‘promulgate as

an occupational safety or health standard any national

consensus standard, and any established Federal stan-

dard. ...’" Under subsection 6(a), OSHLA could prom-

ulgate such standards without complying with the pro-

cedural requirements of the Administrative Proeedure

Act or of the Occupational Safety and Health Act

itself. This special authority was limited in time to

a period extending for two years from enactment.

OSHA had deemed the Walsh-Healey Act standards to

ES MOLT IS

be *tnational consensus standards’* and had adopted

them as its own standards under subsection 6(a). They

were (and are) codified as 29 C.LF.R. § 1910.93, Tables

Gi-1, G-2 & G-3 (1974).

The air contaminant standards included standards

for a couple of the fourteen chemicals. Importantly,

such a standard was in existence for El. Somewhat

curiously, the EL air contaminant standard is. still

effective. Under 29 C.FLR. $1910.93, Table G-1, an

employee's exposure to ethyleneimine is limited to an

eight-hour time weighted average of 0.5 ppm (parts

per million) and lmg M © Cuilligram per cubie meter)

of EL in air in any eight-.. ar work shift of a forty-

hour work week.

SOCMA agrees with OCAW-HRG that in adopting

its new regulation for El, OSHA had to consider

‘experience gained under this and other health and

safety laws .. .”? ($6(b)(5)), ineluding particularly

experience under the ET air contaminant standard.

Indeed, paragraph 6(b)(8) of the Act goes even fur-

ther and explicitly requires OSHA to inelude in its

Federal Register publication of a rulemaking order a

statement of reasons why the new standard should be

adopted to replace the national consensus standard:

“Whenever a rule promulgated by the Secretary

differs substantially from an existing national

consensus standard, the Seeretary shall, at the

same time, publish in the Federal Register a state-

ment of the reasons why the rule as adopted will

better effectuate the purposes of this chapter than

the national consensus standard.’ (§ 6(b) (8) (em-

phasis added).)

FE ST ONE NNER RA REET IEF FEN RE ONT CR TIN INES MRO

, a

| vite

OSILA did not even colorably comply with the require-

ment of paragraph 6(b)(8)."

But the point to be drawn from OSHA’s derelictions

is not that a numerical standard rather than a work-

practice standard had to be adopted for El, and also

for the other 18 chemicals. The air contaminant

standard for EL stood alone. It was not backed up

by other control measures, such as protective clothing

and personal equipment requirements, mandatory

specification of regulated areas, required labels and

warning signs, special decontamination steps, required

reports, and medical surveillanee. What OSHA has

done in the standards for the fourteen chemicals in-

cluding 1 is to rely in large part on work practice

requirements, but to build in a large number of. re-

dundant or back-up control measures, all of which

taken together operate, as OSHA said, ‘‘to reduce

exposure of workers ... to the maximum extent prae-

ticable consistent with continued use.’’ (Pet. Appx.

at 21a.)

In contrast to HRG-OCAW, in SOCMA’s view

OSHA should have looked carefully at the experience

under the air contaminant standard for the purpose

of evaluating whether a further and new regulation

of ET was needed at all. That inquiry is what para-

graph 6(b)(8) intends and indeed requires. To

SOCMA’s knowledge there have been no adverse em-

™SOCMA raised the issue of this default in briefs to the Third

Cireuit (Court of Appeals Brief for SOCMA Petitioners on EI, at

24, 51-52), but that court did not see fit to address the question.

SEARO RATAN ALITA W IS IAT ER ALORA PEER! SR PAM ABN SPOON AIP IT AN mi a a PRE Pe

| eal Si NL RISO GI TEER SIRE OME A ERED

ss Ba

Ae ie! _ Pi er ke

ee iets

ployee health effects due to EI; the air contaminant

standard has provided adequate regulation.”

In large part, OSHA never focussed on its experi-

ence with the air contaminant standards for EI because

HRG-OCAW insisted on one single standard for all

of the fourteen chemicals despite the obvious differ-

ences in physical properties, chemical characteristics,

and toxie, carcinogenic or other health effects. HRG-

OCAW should not now be heard to complain of a fail-

ure by OSHA to look at experience with prior regula-

tions for EI, and especially it should not use that

failure as a prop for a general argument in support

of a ‘‘performance standard’’.

C. The Act Does Not Require OSHA To Promulgate Monitor-

ing Requirements At This Particular Time When Swch

Requirements Have Not Yet Been Developed Or Identified

OSHA specifically noted in its rulemaking order that

it had not incorporated in each or any of the standards

‘provisions for specifie techniques or instruments for

environmental monitoring’’. (Pet. Appx. at 28a.) It

had, however, asked the National Institute for Occu-

pational Safet)’ & Health (“‘NIOSH’’) to develop such

provisions ‘‘on a priority basis’. (Jd.) HRG-OCAW

complain that the Third Circuit improperly sanctioned

such an arrangement for deferred promulgation of

monitoring provisions. HRG-OCAW assert that para-

1 El is a strong blistering agent and must be handled with great

care. The SOCMA respondents remain of the view that it is not

a carcinogen, nor does it meet OSHA’s criterion for denomination

as a substance with carcinogenic *‘potential’’. Because the Third

Cireuit adopted such a limited standard of review that it could not

consider whether EI in fact meets OSHA’s own criterion, SOCMA

has submitted concurrently with this Brief a Petition for Rehearing

of Order Denying Certiorari in No. 74-789.

-—

graph 6(b)(7) of the Act requires promulgation of

monitoring provisions contemporaneously with the

other portions of the standards.

In pertinent part, paragraph 6(b) (7) says: “‘ Where

appropriate, ... such standard shall provide for moni-

toring or measuring employee exposure at such loca-

tions and intervals, and in such manner as may be

necessary for the protection of employees.’’? (Empha-

sis added.)

The Third Cireuit got to the heart of the matter

when it said simply that OSHA had ‘‘deferred im-

plementation of monitoring requirements pending fur-

ther scientific development of methods for doing so’’.

(Pet. Appx. at 12a.) The court said it would not dis-

turb such a ‘‘pragmatic’’ decision by OSHA.

The SOCMA respondents agree with the Third Cir-

cuit on this issue. Where no monitoring measures

had yet been developed or identified,’® it could not be

‘‘appropriate’’ under paragraph 6(b)(7) to provide

for such measures in the standards.”

16In addition, OCAW-HRG certainly have not identified any

such monitoring techniques for any of the fourteen chemicals.

In Occupational Safety and Health Administration, Supple-

ment To Final Environmental Impact Statement On Proposed Reg-

: ulation: Handling Of Certain Carcinogens, the Agency stated :

‘‘No opposition to the concept of monitoring has been ex-

pressed during the consideration of the proposed standards;

the major problems raised relate to the degree of sensitivity to

be required, and the present unavailability of reliable monitors.

*‘The Director of the Division of Laboratories, National Insti-

tute for Occupational Safety and Health, estimates that it

will take approximately two years to develop methods for all

14 eareinogens which will be suitable for general use at the ppb

(parts per billion) level... .’’ (Id. at 65.)

— . — ay, Aayec mane BD. gt IT ACNE ORT A ME ES ER ITE SOTA IEG ERD T RUA * EN em a cM PUMA t SUMENOII NG

Again, much of the present trouble stems from HRG-

OCAW’s insistence on one standard to cover all four-

teen chemicals. Beeause of the diversity of the chem-

icals, no one monitoring method or group of methods

was satisfactory. As the Third Cireuit noted, the en-

tire rulemaking proceeding was adversely affected by

OSTIA’s adoption of HRG-OCAW’s one-standard-for-

all approach right up to the time the final standard

was issued:

“TT }he value of notice and comment from inter-

ested parties in a hearing for rulemaking was not

realized in this ease. As an example, the advisory

committee was instructed that only one set of

standards would be promulgated for all fourteen

chemicals, despite the substantial differences in

their properties and their industrial and labora-

tory uses. After the public hearings had been con-

cluded, however, the Secretary issued separate

standards for each chemical. Had the proposed

rule recited the separate standards, the presenta-

tion of pertinent objections, comments and data

would have made the public hearings far more

valuable to all concerned.’’ (Pet. Appx. at 8a

(footnotes omitted).)

ee ae ee eee

Then too, monitoring requirements in a work prac-

tice standard provide a back-up or redundant protec-

tion. The immediate presence of every single safe-

guard or back-up system of protection is not essential

or necessary to the successful implementation of the

standards. OCAW-HRG imply that stringent enforee-

ment of standards is extremely difficult without the

monitoring requirement. (Petition at 22.) This con-

tention is factually incorrect in these circumstances.

The work practice requirements are all visually ob-

servable. Inspectors have had and will have no dif-

SOT Cheteh a eM ge, wey Ee .

ficulty in determining compliance with requirements

for closed vessels for chemical reactions, negative-pres-

sure (vacuum) systems for transfer of materials, air

scrubbers, glove boxes, closed sampling ports, re-

stricted areas, protective clothing and decontamination

measures.

CONCLUSION

In the view of the SOCMA respondents, OSHA’s

proceedings were faulty, and the Third Circuit failed

to follow the requirements of Section 6 of the Act in

reviewing the proceedings. Thus, the SOCMA re-

spondents have a small measure of agreement with the

HRG-OCAW petitioners, even though the SOCMA re-

spondents certainly disagree with the HRG-OCAW pe-

titioners respecting which aspects of the administra-

tive proceedings and of the court’s review were faulty.

The standards which are the subject of this case

are the forerunners for numerous such standards to

be developed in the future. It is consequently quite

important to OSHA and to those affected by its regu-

lations and standards that the judiciary through dis-

cerning review provide a satisfactory assessment of

those standards.

Unfortunately, the bifurcated Third Circuit pro-

ceedings have led to piecemeal presentation of im-

portant issues to this Court. Now, however, the Court

has an opportunity to examine the three legal issues

arising from the totality of the Third Circuit’s proceed-

ings. In the view of the SOCMA respondents, the two

questions posed by this Petition are worthy of this

Court’s attention, if the Court combines them with the

single question respecting scope of review presented

by the Petition in No. 74-789. To enable the Court to

consider the scope of review issue in No. 74-789 with

the questions presented here, the SOCMA respondents

submit concurrently a Petition for Rehearing of the

Order Denying Certiorari in No, 74-789. Each of

the three questions posed raises a legal issue which

does not require an extensive examination of the tech-

hieal matters raised in the court below. In addition,

each of the three questions concerns the legislative

compromise made by Congress when it conferred stand-

ard-setting authority on the Secretary of Labor but

hedged that authority with procedural and substan-

tive safeguards. Thus, the questions logically belong

together and should be considered by this Court with

each other.

Certiorari should be denied if the Court does not

wish to consider the questions posed here with the one

issue presented in No. 74-789.

Respectfully submitted,

Rosert C. BARNARD

Donatp L. Moraan

CHARLES F., Lerrow

1250 Connecticut Avenue,

N.W.

Washington, D.C. 20036

Attorneys for Respondents

Synthetic Organic Chemical

Manufacturers Association,

et al.

Of Counsel:

CLEARY, GOTTLIEB, STEEN & HAMILTON

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

June 27, 1975

APPENDIX

APPENDIX A

Statutes Involved

Occupational Safety and Health Act. Section 6 of the

Occupational Safety and Health Act (29 U.S.C. § 655

(1970) ) provides as follows:

(a) Without regard to chapter 5 of title 5, United

States Code, or to the other subsections of this section,

the Secretary shall, as soon as practicable during the

period beginning with the effective date of this Act

and ending two years after such date, by rule promul-

gate as an occupational safety or health standard any

national consensus standard, and any established

Federal standard, unless he determines that the

promulgation of such a standard would not result in

improved safety or health for specifically designated

employees. In the event of conflict among any such

standards, the Secretary shall promulgate the standard

which assures the greatest protection of the safety

or health of the affected employees.

(b) The Secretary may by rule promulgate,

modify, or revoke any occupational safety or health

standard in the following manner:

(1) Whenever the Secretary, upon the basis of

information submitted to him in writing by an in-

terested person, a representative of any organization

of employers or employees, a nationally recognized

standards-producing organization, the Secretary of

Health, Education, and Welfare, the National Institute

for Occupational Safety and Health, or a State or

political subdivision, or on the basis of information

developed by the Secretary or otherwise available to

him, determines that a rule should be promulgated in

order to serve the objectives of this Act, the Secretary

may request the recommendations of an advisory com-

YS DN CREATOR PBI 2 rt EL PER OR EEE

mittee appointed under section 7 of this Act. The

Secretary shail provide such an advisory committee

with any proposals of his own or of the Secretary of

Health, Education, and Welfare, together with all

pertinent factual information developed by the Sec-

retary or the Secretary of Health, Education, and

Welfare, or otherwise available, including the results

of research, demonstrations, and experiments. An

advisory committee shall submit to the Secretary its

recommendations regarding the rule to be promulgated

within ninety days from the date of its appointment

or within such longer or shorter period as may be

prescribed by the Secretary, but in no event for a

period which is longer than two hundred and seventy

days.

(2) The Secretary shall publish a proposed rule

promulgating, modifying, or revoking an occupational

safety or health standard in the Federal Register and

shall afford interested persons a period of thirty days

after publication to submit written data or comments.

Where an advisory committee is appointed and the

Secretary determines that a rule should be issued, he

shall publish the proposed rule within sixty days after

the submission of the advisory committee’s recom-

mendations or the expiration of the period prescribed

by the Secretary for such submission.

(3) On oF before the last day of the period pro-

vided for the submission of written data or comments

under paragraph (2), any interested person may file

with the Secretary written objections to the proposed

rule, stating the grounds therefor and requesting a

public hearing on such objections. Within thirty

days after the last day for filing such objections, the

Secretary shall publish in the Federal Register a

notice specifying the occupational safety or health

standard to which objections have been filed and a

eh nce

hearing requested, and specifying a time and place

for such hearing.

(4) Within sixty days after the expiration of the

period provided for the submission of written data or

comments under paragraph (2), or within sixty days

after the completion of any hearing held under para-

graph (3), the Secretary shall issue a rule pro-

mulgating, modifying, or revoking an occupational

safety or health standard or make a determination that

a rule should not be issued. Such a rule may contain

a provision delaying its effective date for such period

(not in excess of ninety days) as the Secretary deter-

mines may be necessary to insure that affected em-

ployers and employees will be informed of the exist-

ence of the standard and of its terms and that em-

ployers affected are given an opportunity to familiarize

themselves and their employees with the existence

of the requirements of the standard.

(5) The Secretary, in promulgating standards

dealing with toxic materials or harmful physical

agents under this subsection, 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 or

functional capacity even if such employee has regular

exposure to the hazard dealt with by such standard for

the period of his working life. Development of

standards under this subsection shall be based upon

research, demonstrations, experiments, and such other

information as may be appropriate. In addition to

the attainment of the highest degree of health and

safety protection for the employee, other considera-

tions shall be the latest available scientific data in the

field, the feasibility of the standards, and experience

gained under this and other health and safety laws.

Whenever practicable, the standard promulgated shall

PLL MAIER Y, PEL OMEN AT NS LIE LN PLN Pe CN OOM RY IN a PE OO

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be expressed in terms of objective criteria and of the

performance desired.

(6)(A) Any employer may apply to the Secretary

for a temporary order granting a variance from a

standard or any provision thereof promulgated under

this section. Such temporary order shall be granted

only if the employer files an application which meets

the requirements of clause (B) and establishes that (i)

he is unable to comply with a standard by its effective

date because of unavailability of professional or

technical personnel or of materials and equipment

needed to come into compliance with the standard or

because necessary construction or alteration of

facilities cannot be completed by the effective date,

(ii) he is taking all available steps to safeguard his

employees against the hazards covered by the standard,

and (iii) he has an effective program for coming into

compliance with the standard as quickly as practicable.

Any temporary order issued under this paragraph

shall preseribe the practices, means, methods, opera-

tions, and processes which the employer must adopt

and use while the order is in effect and state in detail

his program for coming into compliance with the

standard. Such a temporary order may be granted

only after notice to employees and an opportunity for

a hearing: Provided, That the Seeretary may issue

one interim order to be effective until a decision is

made on the basis of the hearing. No temporary order

may be in effect for longer than the period needed by

the employer to achieve compliance with the standard

or one year, Whichever is shorter, except that such an

order may be renewed not more than twice (1) so

long as the requirements of this paragraph are met and

(IL) if an application for renewal is filed at least 90

days prior to the expiration date of the order, No

interim renewal of an order may remain in effect for

longer than 180 days.

AR OPIN REIT EEE EI LIN RN Ls UTS STO E LREGAGEE LYRIS. NILE EGE AP GLO ON TEM OLLT LI, ASEM. te

(B) An application for a temporary order under

this paragraph (6) shall contain:

(i) a specification of the standard or portion

thereof from the which employer seeks a variance,

(ii) a representation by the employer, sup-

ported by representations from qualified persons

having firsthand knowledge of the facts rep-

resented, that he is unable to comply with the

standard or portion thereof and a detailed state-

ment of the reasons therefor,

(iii) a statement of the steps he has taken and

will take (with specific dates) to protect employees

against the hazard covered by the standard,

(iv) astatement of when he expects to be able to

comply with the standard and what steps he has

taken and what steps he will take (with dates

specified) to come into compliance with the stand-

ard, and

(v) a certification that he has informed his

employees of the application by giving a copy

thereof to their authorized representative, posting

a statement giving a summary of the application

and specifying where a copy may be examined

at the place or places where notices to employees

are normally posted, and by other appropriate

means,

A description of how employees have been informed

shall be contained in the certification. The informa-

tion to employees shall also inform them of their right

to petition the Secretary for a hearing.

from any standard or portion thereof whenever he

determines, or the Secretary of Health, Education, and

SOG EEE RS RENAN SS. CRM RACE TROT APROPOS

5 PO OE

Welfare certifies, that such variance is necessary to

permit. an employer to participate in an experiment

approved by him or the Seeretary of Health, Mduea-

tion, and Welfare designed te demonstrate or validate

new and improved techniques to safeguard the health

or safety of workers.

(7) Any standard promulgated under this subsection

shall preseribe the use of labels or other appropriate

forms of warning as are necessary to insure that

employees are apprised of all hazards to which they are

exposed, relevant symptoms and appropriate emer-

gency treatment, and proper conditions and precau-

tions of safe use or exposure. Where appropriate,

such standard shall also preseribe suitable protective

equipment and control or technological procedures to

be used in connection with such hazards and = shall

provide for monitoring or measuring employee ex-

posure at such locations and intervals, and in such

manner as may be necessary for the protection of

employees. In addition, where appropriate, any such

standard shall prescribe the type and frequency of

medical examinations or other tests which shall be

made available, by the employer or at his cost, to

employees exposed to such hazards in order to most

effectively determine whether the health of such em-

ployees is adversely affected by such exposure. In

the event such medical examinations are in the nature

of research, as determined by the Secretary of Health,

Education, and Welfare, such examinations may be

furnished at the expense of the Secretary of Health,

Edueation, and Welfare. The results of such exami-

nations or tests shall be furnished only to the Secre-

tary or the Secretary of Health, Education, and Wel-

fare, and, at the request of the employee, to his

physician. The Secretary, in consultation with the

Secretary of Health, Education, and Welfare, may by

rule promulgated pursuant to section 553 of title 5,

ea Eat FRRDENP NEON BAT PYRE? Ney PEN NERD a CaS bide wen tM cn EL BE Re ELT ae eer tee

United States Code, make appropriate modifications

in the foregoing requirements relating to the use of

labels or other forms of warning, monitoring or meas-

uring, and medical examinations, as may be warranted

by experience, information, or medical or technological

developments acquired subsequent to the promulgation

of the relevant standard.

(8) Whenever a rule promulgated by the Secretary

differs substantially from an existing national con-

sensus standard, the Seeretary shall, at the same time,

publish in the Federal Register a statement of the

reasons why the rule as adopted will better effectuate

the purposes of this Act than the national consensus

standard.

(c)(1) The Seeretary shall provide, without regard

to the requirements of chapter 5, title 5, United States

Code, for an emergency temporary standard to take

immediate effeet upon publication in the Federal Reg-

ister if he determines (A) that employees are exposed

to grave danger from exposure to substances or agents

determined to be toxic or physically harmful or from

new hazards, and (B) that such emergency standard

is necessary to protect employees from such danger.

(2) Such standard shall be effective until super-

seded by a standard pronulgated in accordance with

the procedures prescribed in paragraph (3) of this

subsection.

(3) Upon publication of such standard in the Fed-

eral Register the Seeretary shall commence a pro-

ceeding in aecordance with section 6(b) of this Act,

and the standard as published shall also serve as a

proposed rule for the proceeding. The Secretary shall

promulgate a standard under this paragraph no later

than six months after publication of the emergency

PERM MEHOE YW INN RAN PANELED TGA TRAE IE RAE REN ERT IE LSPA OE LR PTS NOR OHNE NE

standard as provided in paragraph (2) of this sub-

section.

(d) Any affeeted employer may apply to the Sec-

retary for a rule or order for a variance from a

standard promulgated under this section. Affected

employees shall be given notice of each such applica-

tion and an opportunity to participate in a hearing.

The Secretary shall issue such rule or order if he

determines on the record, after opportunity for an

inspection where appropriate and a hearing, that the

proponent of the variance has demonstrated by a

preponderance of the evidence that the conditions,

practices, means, methods, operations, or processes

used or proposed to be used by an employer will

provide employment and places of employment to his

employees which are as safe and healthful as those

which would prevail if he complied with the standard.

The rule or order so issued shall prescribe the condi-

tions the employer must maintain, and the practices,

means, methods, operations, and processes which he

must adopt and utilize to the extent they differ from

the standard in question. Such a rule or order may be

modified or revoked upon application by an employer,

employees, or by the Secretary on his own motion, in

the manner prescribed for its issuance under this sub-

section at any time after six months from its issuance.

(e) Whenever the Secretary promulgates any stand-

ard, makes any rule, order, or decision, grants any

exemption or extension of time, or compromises,

mitigates, or settles any penalty assessed under this

Act, he shall include a statement of the reasons for

such action, which shall be published in the Federal

(f) Any person who may be adversely affected by

a standard issued under this section may at any time

prior to the sixtieth day after such standard is pro-

ee ae ee ae

« 9a

mulgated file a petition challenging the validity of

such standard with the United States court of appeals

for the circuit wherein such person resides or has his

principal place of business, for a judicial review of

such standard. A copy of the petition shall be forth-

with transmitted by the clerk of the court to the See-

retary. The filing of such petition shall not, unless

otherwise ordered by the court, operate as a stay of

the standard. The determinations of the Secretary

shall be conclusive if supported by substantial evi-

dence in the record considered as a whole.

(g) In determining the priority for establishing

standards under this section, the Secretary shall give

due regard to the urgency of the need for mandatory

safety and health standards for particular industries,

trades, crafts, occupations, businesses, workplaces or

work environments. The Secretary shall also give

due regard to the recommendations of the Secretary

of Health, Education, and Welfare regarding the need

for mandatory standards in determining the priority

for establishing such standards.

Prec la Md ie 5 tie Ae ae a ec ecm ed SEELEY IE ECMO LNG, NN GREET

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