Document 5DV667EGGzQjXzreEYym3kJk5

............... * ` , * < .I H'*.1' * `M* ^ * 1#/ ^" ' ' '} j 1 <7> A nwlli *i nurvulltunctf prt*y*m 1* required (or all employees exposed to VCM in excess o( the ftctiov\ level d 0,5 ppm. :t ` , 2V C.F.R. 51910.93 q (k), . , ! . I ` ,y, < . (8) Finally, in addition to certain record-keeping require- ,, Ar *' ' ments, all entrances, work-areaa, and containers related to 'VCM or PVC manufacture and PVC fabrication are required to be labelled with the warning legend:. `"Cancer-Suspect Agent". 29 C, F.R. $1910. 93q{l), IV. PETITIONERS' CONTENTIONS (a) Petitioner's initial claim la that the available acientific and medical evidence does not establish that the 1 ppm exposure level adopted by the Secretary is required by health or safety considerations. . f They claim that no proof exists in the record to justify such a low standard, since all of the medical witnesses testified'that no one can say whether exposure to VCM at low levels was safe or unsafe. Further, they point to studies of employee health by Dow Chemical over a number of years which concluded that exposure to VCM below 200 ppm did not lead to any adverse effect. .* We find, however, that the evidence is quite sufficient to warrant the Secretary's choice. First, it must be remembered that we are dealing here with human lives, and the record reveals that ll manu- facturing plant workers and two fabrication plant workers have already di^d from the effects of this potert chemical. Moreover, the animal exposure study, sponsored by MC1 , the industry's own trade association. 14- 6ENC 004503 :;'i nV*^7 -7'"*'*'*' * S ..rir1'v;vK;;;".1>!ss-vW.V : 1*vi.*''.i>*' ; ;' j /'i v w, ** ^ . h ..- v ; .'--v- . , {'.* teauMtltMify'/fy eaf^t^vel of e^poour* to VCM, n6r the fcraefo* ><-. ' l' .( f ' f ^v v`4, *., v^/>** ;, ` `' * *. , -** t /.: |<s\u- >V 1,`/:*"i >\t u,r'f ; `J^,! ^ Tncenikulsnj`,b/'^n icji it prpddecs cancer; yet expert e/ter expert';.: ' , '/ ' . '. \.V ,'1-;,i.^..VIp'.'!'V V r >' ?'V-',v,.( I'-','" ' u i / retoptmenjlj^Jhat..^Ub-,"Veiy vir\tfeht'! /carcinogen' be re^ifletedJp .*, :A. 'V-r*>' ''''- '' ' " V-1' V J^f i<"\ ' . ` level. ,Indeed, ,as one "Watties*,'. Dr., Kraybill, .*. ' f , ' v = yw -V' V ) ` , ,of .thii^J^aHenpl-tJanc^r Institute, .testifledi , . 7 > ` '., ' C>>^(''rV. '. *< <; *' '!'\!' ' . ; ' * i-V.'.1 ; ;> ! _.,* y;7 <?erU.iqly, ther<a is little margin for- safety '`,.^3^ * 1 ,. I* 'e response can be expected at a level below ,; , `. ` t /j-. if 7 V>0' parte per million which In truth ia now only _* *>}',-/' ' ' = ,7'' a, fifty-fold safety fictor In terms of the proposed ,)',< /standard. According to toxicological principles, <t >.^,,^,*,7"' !. , *' *> ' \`yf .were this compound a non-carcinogen, then to. _ ''.v-': J* - , |VCV, ttabjiph a tolerance or safe level, there would ` " .! 1.' . ' t A. I . jifve'to be a 100 to 1 margin of safety in terms } ' -' .*"17,vi.V` -'' '. ''.^Ae in Industrial Union Department, AFL-CIO'>y. -Hodgson. ' L; f 1 ' , 1 '' f t ... J` *, ' l*~ eM. 1I it JJUSUIS.' ultimate, facts here in dispute are "on the: frontiers of i 'i j scientific; knowledge",, and, though the factual finger p'ofnts, it dobs > "' i,. \ f1 - ^ . , not conclude. , Under the command at OSHA, tt remains the duty of thi ;* f,. * ' 'i t; l. t ,* ^ *'**' w r `1 , Jr _ k '1 "" S :*S-ecretairayi' t,a ta,ct, to protect the workingman, and to aet even in tfreum- ...v 'v ,* ' . ; .* ' -tunics where existing methodology or research is deficient. . The' ' ' ' t v.*.,, /' 1 ' . Vi.*. Secretary,' ih extrapolating tho MCA sfudy's finding from mouse to .mar, ' .* - ." ' has chosen (o'reduce the permissible level to the lowest. dc(octablo one. if *. I We /ind.'noj error ih this respect. 'l . '1 ' k'. km -J -15- 'i ,y. . e e. J *' * % ' rff?* *v 'v . ,, / *. . ,! . ./ , .. U . I .: ..; ` V,w. . ` ' i. ' t ` ' 'VY 4 I y* * GHC 004504 n 4' . V * i. v* < <b) ,* * r, a i- falling In this contention, petitioner* strongly urge that It ' , the Secretary, breached' his statutory mandate to insure that the standard selected is a "feasible" one,-- Relying on the so-called Snell Report,^* petitioners ^laim that VCM and PVC manufacturers will nsver.be able to reduce levels of exposure to l ppm through ** 1 engineering means. They point to the conclusion reached by the Snell Report that: The costs of compliance increase rapidly with ` *>. decreasing VCM target levels and represent . significant engineering uncertainty or infea6ibility ( beyond 10 ppm ceiling and 2-5 ppm TWA for the VCM industry and IS--25 ppm ceiling and 10-15 ppm TWA for the PVC industry. According to the report, "[b]ased on the industry surveys and Snell's independent assessments of the state-of-the-art of the technology," the standard price of VCM would only rise from 7,41<!.lb. at present to 7.69^/lb, at a target level of 2-5 ppm TWA, but would supposedly soar to 12.71f/lb. at the "no-detectable" level. In his statement of reasons in support of the standard, the Assistant Secretary acknowledged the industry contention and the Snell conclusion about the infeasibility of the 1 ppm level, but noted that: i "Labor union spokesmen and the Health Research Croup, Inc., however, j have suggested that such a level is attainable," The Assistant Secretary V` J went on to say: 1 / * J ' <. . GENC 004505 t /.* '- s Y * t* *' % \ tr 7 1 ;' " '* i * ' * s.; ;< y: * *" i, v'.1 ..! 1 4\. * r , --v,' * t IV V r.r\V - .f 4 ! ' Since thefe is no actua( evidence that any; t'.'.'ot the VC or PVC manufacturers have already . ; attained a 1 ppm level or ip fact instituted all availj'V-', able "engineering and work practice control;, any estimate as to the lowest feasible level attainable , nftust necessarily involve subjective judgment. Likewise, the projections of industry, labor, and others concerning feasibility are essentially Conjectural, Indeed, as Firestone has suggested, V tt is not possible jto accurately predict the degree v.'`of improvement \o be obtained from engineering changes until such changes are actually implemented. We agree that the PVC and VC establishments will not be able to attain a 1 ppm TWA level for all Job classifications in the near future. We do believe, ` ' however, that they will, in time, be able to attain / levels of 1 ppm TWA for most job classifications .. most of the time. It Is apparent that reaching such level* may require some new technology and work practices. It mi,y also be necesoary to utilize ` ` technology presently used in other industries. In ' any event the VC and PVC industries have already made great strides in reducing exposure levels. (See testimony of Dow Chemical Co. , TR 973). For example, B. F. Goodrich testified (TR 1120) that It has reduce average exposure levels in several PVC plants from 35-40 ppm early this year to 12*13 ppm at the time of the hearing. We are confident that industry will continue to do so. (39 Fed. Reg. at 35892. ] A y :i7. ^5? a-ilmiVfiii iriUi af -I * *- i-S'V*- -*** * j-;. > l GENC 004506 I. *, ri *Xv fl SJ.'* *'' , * w \/ *' Vv ' *. : *' 41 V * ' ? , , ` * ; } .*. - * - ',l' !* 'i':," v.'- -.. * ' i .... ' , ' ,'., V * , ,' 1 u * ' * ' ` . '. 'jWc. cannot agr^e with) petitioner* that the standard is so V' /t.v. '`K*'"1'}. t . ''" ' . . <i 'clearly, Vmpos.sibte of attainment., It appears that they simply need more i ' ('.* ! i *-' ? ' fajth in`their own technological potentialities, since the record reveals \that, despite similar predictions of impossibility regarding the *V t ' m, - emergency 50 pprp standard, vast improvements were made in a matter * , " i`; , of weeks, arid a variety of useful engineering and work practice control* * ' *. have yet to he instituted. In the area of safety, we wish to emphasize. y ' ) '. - ' " J* ` the Secretary is not restricted by the status quo. He may raise * - standards which require improvements in existing technologies or *L . i ' which require the development of new technology, and he is not limited 9 ' V , t' i ' to issuing standards based solely on devices already fully developed. jj : * ' cf, Chrysler Corp. v. Dept, of Transportation, 472 F. 2d 659, 673 J *.'' . (4th Cir. I972)i Natural Resources Defense Council, Inc, v. E. P. A. . ` ' 4M f. 2d 390. 401 (Sth Cir. 1971). ! '' ' there l* much testimony in the record, especially in the '' { Snell Report, indicating that VCM concentration can be easily pinpointed * t `i r., and largely corrected. For example, many of the companies engaged In . ' PVC manufacture still perform the cleaning of batch reactors by opening the vessel and having the worker physically enter it. In chipping off ' the accretion from the walls of the vessel, the worker is thus exposed . to a high concentration of VCM. Yet other, less hazardous methods are currently available and in use, in which the vessels are cleaned by machinery, emulsions or simply water under high pressure. Other i", ' , sources of exposure are encountered in filling tank cars, measuring, i : i , testing and repairing pipe joints or other connections. The Snell Report ' ` indicates that much of this may be alleviated. 18- 0m .* GENC 004507 <9* ' : '**'*{"***'#', * . .,% .*, - -vO * **' ' } a.\ n^w, iiir <*', rr,>. *' > ,''/:."'- -.V ,.*l>niP*lA/^P,N * .*/;, * b,-li^oqdoi*.noirc^t''only on Engineering and work p^actlco control*. 1 J '\ ' - V ' ' '' . '' - H t||Qy >TDd*je piAt the `industry use such technology to the extent .' *' feasible, but, Jnore importantly, he requires that, in addition, respiratory protection be used If engineering means cannot bring the VCM level down to the permissible limit. To he sure, respirators have their drawbacks. These problems were detailed at the hearings and recognized by the Assistant Secretary. Self-contained and air-hose^ type breathing equipment is bulky, expensive, and infeasible for full-time use, as well as potentially hazardous in 4 terms of tripping, restricted mobility, and over-exhaustion of workers, But the fact remains that they effectively eliminate exposure to VCM;\'' and they are already being used by some PVC companies In the cleaning a % 'I process and at other points in production wi;k good success. Like the Industry's claims about the impossibility of achieving compliance through technological means, petitioners' claims of dire consequences from the requirement of respiratory protection are exaggerated. It does not appear that full-time use of respirators is necessary, and the Snell Report points this out. Furthermore, lightweight, inexpensive cartridge or cannister-typc respirators, which can effectively filter out VCM at low levels, are now available and acceptable. Contrary to petitioners' assertions, the Snell Report indicates that a variety of respirators are reasonably available. c. We find that the Secretary's directions are clear, definite, and certain and that they are also entirely feasible, since the goal of the lowest detectable level can definitely be attained through the -19- GENC 004508  * * % *# ii'r^ni.v.i^ j.,iilet'.iil-V'i .:'.vvjxl^i^ .f>'yr UvTnT-'xhi.yfl * i* .* , tr^j ,>-,; ./.* *.' ,* . * ' *./ " ' .. > , ' '''.'' ;' i . i ">^> -si rv .* combination of technological meins and respirators. Our condos i'-r. it' . , i In this regard is buttressed by the fact that only some 6,500 ot (tie workers coming under the standard -- those in t>.* VCM and PVC ^ manufacturing field -- are potentially exposed to high or cons tar;-. I VCM concentrations, and only a small percentage of them are actual'/ subject to excessive concentrations of the chemical during manufacture. 'll The remaining hundreds of thousands of workers are in' the fabrication 4* field, where exposure is already so low that some of the petitioners ** claim- that the fabricators should not even ba under the standard; !I \ these, of* course, have been included because of their work with PVC reein which in final form contains residual amounts of VCM, and the record shows that two deaths have in fact occurred among fabricators. If. in the future, the monitoring under the standard indict'^* that the VCM level among fabricators is sufficiently low and that' dbe sporadic, unpredictable exposure of these worker* to residual VCM. c-s- f! been controlled, the fabricators might well be excluded or included - a separate, less rigorous standard. Orrtainly if PYC producers wer* able to eliminate all residual VCM from the rosin before it is delUered to `he fabricator, there would neem to be no reae.-n fur their inrliisi--i. Bet this would be for the Secretary to decide on impropriate appHratt :n or on his owe motion, and. 'is the roiord present.. stands, their irclubion i* .rnply juarfied, . i \ * In any event, orr.pi anro s imu-phas.ec md, if the prti-.--.ers find that they .snnot -. unriaiy for /casnini beyond -outre,I, OSH.'i permits the intendnent of ,tar.aarne. bee '<1 rj.i. A) Upon applicer.cn and ufficicnt nrooi -t -,m-h < 4i* we feel err-, ri -Z0. GENC 00450? that the.petitioners would obtain relief at the hands of the Secretary, This is especially true of the "cancer suspect agent" labelling requirements which petitioners urge are beyond statutory contemplation, We think ,that the Secretary is simply "fighting fire with fire" and using the labels to bring the danger of vinyl chloride forcibly to the attention of the workers. Cl. Synthetic Organic Chemical Mfrs, Assn, v. Brennan. 503 F. 2d 1155 (3<^ Cir, 1974). They deserve no less treatment. We have also considered the other arguments of the petitioners and find them untenable. V. It is our conclusion that the challenged aspects of. the t. Secretary's vinyl chloride standard are supported by substantial evidence in the record and that the petitions for review must be denied. Talcing Into account the delay occasioned by these petitions, we think fhst a reasonable "lead time" is appropriate and therefore order that the Secretary's regulations, rather than being effective January l. 1975, tc shall become effective^ sixty days after the date of this order and that the time requirement as to respiratory protection contained in 29 C.F. R. $1910.93q(g)(l) is re-scheduled accordingly. 4 -?\- GENC 004510 iS . i-'y**+******** -\ , r . ... (yr* . /I - Timo Weighted Average (TWA) repreuenta a worker'* cumulative exposure to a toxic substance during a 9-hour r..ft. /2 - Petitioners' application for stay of the January 1st deadline was granted pending our disposition of the matter. /3 - 29 U.S.C. 5 655(b)(5) provides in part: 't v. 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 or functional capacity **#. / 4 This report, "Economic Impact Studies of the Effects of Proposed OSHA Standards for Vinyl Chloride," was prepared in September of 1974 by Foster D. Snell. Inc. , an independent consultant, at the request of the Secretary of Labor and .estimates the cost to the industry of complying with various exposure levels between 50 ppm and 0-1 ppm. Plant and industry visits were the principal means of information gathering. GEHC 004511