Occidental Petroleum Corporation

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IN THE MATTER OF OCCIDENTAL PETROLEUM CORPORATION, ET AL.

Docket 9205. Intelocntm- Order, NO'embIT , 1989 ORDER Pending appeal from the Initial Decision, complaint counsel and the respondents have jointly moved that the Commission (1) modify the order of the Administrative Law Judge by substituting divestiture of Occidental' s Burlington, New Jersey ("Burlington North"), plant for divestiture of Tenneco s Pasadena, Texas, plant and (2) accept the order, as modified, in final disposition of this matter. Various other modifications consistent with the substitute divestiture also are proposed. The motion is denied.

The principal arguments for the substitute divestiture, as presented in the briefs of the parties, are that (1) an immediate settement and early divestiture wil provide some relief from Occidental' s allegedly unlawful acquisition of the polyvinyl chloride ("PVC") business of Tenneco in the near future and (2) the Administrative Law Judge opinion cannot stand on appeal.

A settement may in some circumstances be acceptable, partly because it will provide relief immediately, as against the uncertainty of any relief after all appeals are exhausted. Given the relative merits of the Burlington North and Pasadena plants, however, the substitute divestiture appears highly unlikely to achieve the remedial purposes envisioned by the Initial Decision. The Pasadena plant is a modern low cost, large reactor suspension PVC plant, with an annual capacity (before the acquisition) of approximately 750 milion pounds. Burlington North is a small, high cost, small reactor mass PVC plant, with an annual capacity of approximately 120 to 140 milion pounds. The proposed substitute divestiture proposes a remedy far different from that required by the Administrative Law Judge in his Initial Decision and contemplated by the complaint. If the substitute divestiture were more comparable to the remedy required by the Administrative Law Judge, the prospect of an early settement might outweigh the interest in obtaining a more substantial remedy. Here, however, the disparity is too great.

Occidental also argues in support of the substitute divestiture that the Administrative Law Judge s conclusion of a violation of law in the 586 Interlocutory Order mass and suspension PVC market wil not withstand appeal. Occidental bases its argument principally on the decision of the Commission in F. Goodrih Docket No. 9159. Complaint counsel do not support this argument and instead maintain that the Initial Decision would upheld on appeal. An assessment of the relative merits of these assertions would require a full evaluation of the record. Although Occidental may indeed prevail in its appeal to the Commission or to the Court of Appeals, the conclusions of the Administrative Law Judge that conditions in the PVC market have changed since the record closed in B.F. Goodrich are facially plausible and require further consideration.

Accordingly, it is ordered That the joint motion of the parties to modify the order of the Administrative Law Judge by substituting divestiture of Burlington North for divestiture of the Pasadena, Texas plant and to make the order, as modified, the final order of the Commission be and it hereby is denied.

Commissioners Steiger and Owen not participating. 588 FEDERA TRAE COMMISSION DECISIONS Complaint II2 F.