Document 71wEdO9mErz052OM9r2ayrBY8

[Please Note: This copy was retyped from the Court's typewritten copy when it was learned that printed copies would not be avallab1 until later.] UNITED STATES COURT OF APPE7TLS FOR THE SECOND CIRCUIT Nos. 505, 603-608, 670, 671 Argued December 13, 1974 Doclret Nos. 74-3284 74-2286 74-2308 74-2345 74-2449 September Term, 1974 Decided January 31, 1975 74-2450 74-2491 74-2505 74-2609 THE SOCIETY OF THE ELASTICS INDUSTRY, INC., Petitioner v. OCCUPATIONAL SAFETY HEALTH ADMINISTRATION, ET AL., Respondent;; HOOXHI CHEMICALS & PLASTICS UORPORATIX'N, and AIR PRODUCTS AND CHEMICALS, INC., and TENNFCO CHEMICALS, INC., Pefcitio.1fi.-g V, OCCUPATIONAL SAFETY AND HEALTH ADMJNISTjIATION , ET AL., Deeper, den to UNION CARD IDE CORPORATION, Petitioner V. UNITED STATES DEPARTMENT OF IADOR, ET AL., Respondent; 9"HE B. F. GOODRICH COMPANY, Petitioner v, PETER J. BRENNAN, ET AL., Respondents ASI 000018478  2- - FIRESTONE PLASTICS COMPANY, A Division of the FIRESTONE TIRE & RUBBER COMPANY, Potltloncr-Intorvonor V. UNITED STATES DEPARTMENT OF LABOR, ET An Rc spon.den t s UN I ROYAL INC., v. OCCUPATIONAL SAFETY AND HEALTH ADHINISTATTON, ET AL., Respondents GENERAL DYNAMIC CHEMICAL CO,, INC., Petitionor v. O C CU P AT I ONAj.. SAVELY AND HEALTH ADMINITTHATION , Elr AL , , Respondent THE DIAMOND SHAMROCK CHEMICEL CO., INC., V. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATl ON, FT AL. , Respondents An amicus curiae brief was filer: on Lehr,If of Chemical Fabric c Film Association. Before: CLARK, Associate Justice,* LEVAN, District Judge,** cind DUFFY, District 0 adge . * * * Petitions for Review of the Vinyl Chloride'. P.egrletion, 29 C.F.R. 1310,93q, of Occupational Safety and Health Standards for the Vinyl Chloride Industry, promulgated by the Secretary of Labor, pursuant to 23 U.S.C, 555. Petitions arc denied. * Uni'Loci SLatos" Supreme Court, Retired, sitting by designation *'*Unitecl States District Court, Southern District of New York, Retired, sitting by designation Unite ;j States District Court, Southern Uistriot of Nov; Yc.:L, a i t ting by de s ign at ion AS I 000018479  3 Allan Topol, Washington, D. C. (Covington & Burlington on the brief) Jerome H. Heckman, Washington, D, C. (Keller and Heckman, 1150 17th Street, M.V7., Washington, u. C., on the brief) Walter B, Connolly, Jr., Firestone Tire- and Rubber Company, 12 0 0 Firestone Parkway, /.kron, Ohio 4*-!317 John J. Cassidy, Jr,, Chicago, Illinois (Vedde.v, Price, Kaufman r.nd Kc.mm.hoIz, 39 South LaSalle, Chicago, Illinois, on the brief) for retitionors Stephen F. Eilperin, Aasis cant Chief, Appellate Section, Civil-Division, Department cf Justl cr , Washington, D. c. for Kespcindentfi George H. Cohen, We shirr; to.n, D. C. (Bredhoff, Cushman, Gotten mn and Cohen, 3,000 Connecticut Avenue, i'.w., Wahinyuon, P, on the brief) for 3nro:._vuncr Indus ixtini Union Department, AEl-CIU. c,, Lawrence Gold, Wash:! nylon, B, c. (Woll, haver s Gold, 73C Be wen Building, 815 15th So, , N.W., Washington, D. C,, on the brief) for Interv'nor AFL-CIO. ...... 74 R. JUSTICE CLARK: This is a petition for ;v view of the hr.nltn and kafi>v rc guilt ti c: s for the vinyl othwido infix.try, 29 C.)h!u 910 , l.'.Vu , promulgated by the Secretary cf Labor on October 4, 1974, pursuant to the Oc '"parietal "Uvtcfcy and health Art, 29 IbK.C, 1151 et nw, (hereinafter OSH?.}, 'the standard and uhe Secrcf ary' a suatcuort of reasons for its imposition are set forth ah 29 Fed, Peg. 35890-35592, In brief, the Secretary has adontod a standard which roc ires that no worker is to Ur exposed to concentrations of vinyl chloride in or cess of one part per million gypm) ' awraqce.: over any eight-hour period, 29 C.F.R. 1*910.93g (c) (1) , Petitioners ir.anufooturcrc of vinyl chloride ; vlii chloride products make: five, principal claims: (1) the a vis i 3 - able scientific and medical evidence does not establish that the 1 ppm exposure .level adopted by the Bee rotary is required lay health or safety considerations; (2) that the .Secretary violated tiie requirements of 29 U.5.C. SS55(b)(5) by adopting a rtendard 'which is technologically and economically infeasible for Indus cry ASl 000018480 4 to reet; (3) that the standard is so vague and uncertain in its terms that enforcement will violate the requirements of due process; (4) that there was no substantial evidence in the record to support the Secretary's conclusion that those who fabricate products out of vinyl chloride should be subject to the Seise requirements as those who produce vinyl chloride; and (5) that the Secretary's sign and labelling requirements unduly and nenoy unlawfully erxxnacized the carcinogenic properties of vinyl chloride. We find these contentions meritless, and the petitions for review are accordingly denied. I. SCOPE OP JUDICIAL REVIEW Before proceeding to an examination of the regulations at. issue in this case, it would he vrioo to reemphasise, the unique lid tire of the court's role under 05!IA. Although the statute sets forth general policy objectives and c procedural frame-work, the ft rxuilo.tinc of specific s: fety end health policies is left to the Secretary, subject to review in vie United States Courts of Appeals, Our rvujatc i in 19 T.'df.C. 161b (f) , which states in relevant part the detornina lion?, of the Secret >:y shall be conclusive if nppor;-e:> by xubxv.aatlal evidence in the record considered an a v/hole. sib?e of application -chore, as here, the Secretary's decision" making is essentially legislative in character. The problems involved in according judicial rw->cv in ouch cirov.m 1 tf'-ut': la j [Tjho.rc are areas where explicit factual i'indings are not possible, and the act of decision is essentially a prediction based upon pure legis lative judgment, as when a Congressman decides to vote for or against a particular bill. V: 't W *!; f: IP] oil icy choices of this sort are not susceptible to the same type of vexi f next:' on or refutation by reference to the record as are some factual ques tions. Consequent 3 y , the court's, approach must necessarily bo different no matter how the standards of review are labeled. [419 P. 2d at 474-71.3 AST 000018481 i 5 In those ci Lvjrvrr.star.ces, Judge McGowan concludedthe review: ng court rust recognise that its task defies generalised description ar.o qo iron - v<> t, --{y ;o achieve its paramount objective which "is tc see whether the agency, given an ensenti ally legislative task tc perform, has carried it out in a manner calculated to negate the dancers cl arbitrariness and irrationality in the formulation of rules for general application in the fixture." Automotive Parts f: .Acer so or i' e-ova, A4C7 2c. 320 , '3 3 0 (I). C , Cii , J.9 a 8 j . amed with these salutary remarks on our linita- ti oas rid our ohlicaticns, e/e turn the challenged regulations. The:, a the 4,OOG-page record in this core has; teen a oro .cious task, aggravated by duplications of testimony, ir- re! ' tits and letters, almost illegible reproduction of documents, -tod a gate-rally blunderbuss approach in petitioners' briefs. Given the task, however, we have performed it: and con clude that t.bc standard laid down by the Secretary is fully sup ported by rh-e record a.id tell within the requirements of Thai vernal Camera Corn, v, NLf.B, 340 U.5. 474 (1 951), arid Assoc. Industries oc - ''c Df;Tr..vt'v-.nt of Lnro' m Car. iibli , S \v'0 il tx.S : nou; ra.'.ca cnnarti'KUit, AFT,-CIO Koirs1 II. PACkGPOIJPD Ihoi'e arc throe basic out tenon to of the vinyl chloride inter try, first, thorn arc blip l. ore tf rctutovT. of vinyl chloride itself, A gas nfc ambient tamoeratocos and pressure, vinyl chloride mom.mar {vcf`7 is. primarily syn tN-r: iron hv if no cxychlcri nat_ r.~ of one in a baneful of largo outdoor production plants which rc combi e oil ref inc.r.ie^. Shell, Dow, and Goodrich are the leading procurers, accounting dor come 501 of the 5.2 hi!?ion pounds an nually s\ni 1::. r, la in the da/h.ch ft alm-s. Boo..it sc-: of tho hi oil degree of a id. ov*at in.-:: involved in thin me nuf a otuiinc: process, only `-cm.o* 1, v.o: har v arc: eiry. ..0. vod in Wr ]- roducf i on . VCil plants are cpr.n-a i r facilities. privnu.riay in the Sovd.h . Scoc-nd, there; are tho nonuf ivLurov;; of oolyvinyl chi era do (?V,3) , Virtr Lo.,Iy all vinyl ehlcvd do is po?ymoriren'! into thovo- ojkiFLic PVC In v:n:.cn ;orvG a:--, the baric for a wide vnririv ot u: rfui plasties products. Goodrich is bv far the- largest single producer, producing soma 29?: of the country's, 5.1 billion, pounds annually, though in total there are only 21 companies operating tho 37 PVC yi/ntis. Historically, PVC production lias been a "batch' or rnnn-'oont r sous operation carried cat in relatively small (2 , 10C--S ,000 -gallon) ''reactors" v/hich require fraouout cleaning; the trend, hr. mover, is towards substantially larger reactors.. P VC p. 1 a n t s r: s n o t open-air facilities and are generally located in colder cli.r:atGs than VCM plants. They employ' come 5,00 0 wrkers AS I 000018482 i -6 :ird, and finally, there are the fabri caters of pro ducts which ibfcilizo PVC resins, Innumerable firm 's throughout the country,, or.;;:.'loyiny thousands of workers, corn- fund PVC with pXr<v.ici "er',i r heat stabilizers, lubricants, light stabilizers, f I sure retard rots, or impact modifiers to produce am astounding variety cue v: ares, such as pipes and conduits for building and con s i. 7. a c t i o';l , flooring, wire and cable, furniture , phonograph records f and /'/cfc.aq.inc,, in fabrication, residual CM that has been entrapp so in the PVG resin escapes during th he citing pro* this uey workers in the fabricating industry are also cm -ac t.c vi; yl cl i lor ice. It. is now clear that the workers in all components of the vinvl c! crxde industry arc subjected to a serious health risk jC ram. VO' . Although conclusive proof of the carcinogenic an d , in turn fatal character of VCM did not emerge until early in 1174 non the deaths of three 'workers in Goodrich!s PVC pi tint at Lou: jj, vi3 .Is were rcoor end , strong warning sitmals had app-e a r e d 1 on-.; ; before. As eariv as 1949, 'when the vinyl chloride industry hind barely ranched its tenth a silvers ary, a study eon* duct --.d s n v vifjvl chloride workers in the Soviet Union found (U y t in 15 of 4S vorwei w studied, and in 135 5 and 19el, Dow Chf:-rvic I * scientists elicited liver .irregularities in rats an ft rabbi r.s ! c a 100 pr/w concentration, of VP?'!. /vlihrvqh Dov' \Q ''f-'uf-;'{* S' i it ppm < 11 c-';cable level in lif-l, the industry ad- herod to its prcvicuo 500 ppm standard. he need not outline in detail the morbid "Vinyl Chloride Chror-Glo-crw" , published by an industry spokesman, the Ma.nufne airing Chore acts Ass a. ''at ion (MCA), in a .1374 press release (Joint Appen dix at 134-14 j) in order to illustrate the mounting evidence of VCK'f- carcinogenicity. Indeed, the record shows -what can onlyj be c h. a course of continued proeras ainati < m o.n the part o ;C t k / 1 7`C us " T J- plot c. C V. the i'vc's or its amp ioyo'-'-p . In 1907, v/hen tb h rid A, A- jr ti>- kd no erdei its this v icfh ann.ivers:-; ;.-y , upon rc-'C::: V i /*V 1 - a , ,, \.i .! 1 ir i-.J G- Th :l"tU of th.; softening of the finger tine and 1:;0r. P; V*./. "T '' V'CM/PVC work vr; , the Mer,uf actur: rg Chemists A s.soein- tie \ V' : C. 1.i.. Mx i V3i: 5.1 by of M: ichignn study the cuurru; of tills abno: '.'.Vi. & 1 that. T r y T* * C 1 ffhroe y-p-vTj ^ /i year s 1 not lain ink the cause of the malady but recow'ii`2 L rA u-1: dA .7- VC'M/PVC co ill: of 5 0 ppm VCM, nothing was aerie. And in March r::f the same year, Dr. F. L. Viola of the Regina hi emu imtiv; m for Cancer Research in Rom, Italy, published a report that 3: ,000 pprn VCM exposure for four hours per day, five days pox' v;ech for a year produced cancer of the skin, lung, and bones of rare, and a few months ater at the Tenth International Can.nur Corqru a . dt scribed obsc: utions oi"' malignant tuno.rs in the .i, rats sabjeecu C1 Cl to flic ssiiic- exposure. Appar- cntly, "v v 3 p on Dr. Viola's comment at the close of hi:; abstract that: * Mo im 1.1 cations to human pathology can be extrapolated from the ex;; o-r: mental model reported in the paper," the industry did ivor'ring , AS I 000018483 i I /- In 1971, MCA began to inquire by letter regarding the conduct of toxicological studies on laboratory animals with VCM and in Hay of 1971 heard a detailed presentation by Dr. Viola regarding his earlier studies as well as other studies then un reported. The industry began talking about raising funds for epidemiological research, on VCM carcinogenicity, but not until March 30, 1972, did 17 U, S. companies agree to finance such a study. By then, the first deaths of U. S. workers due to VCM exposure were being recorded. Months were consumed in 1972 by negotiations among the participating company representatives, and it was not'until February of 1973 that a protocol was agreed upon and a research contract for animal exposure studies signed. Meanwhile, startling results from European experiments were filtering back to the industry. By January of 1973 it was discovered that European experiments with rats had not only found tumors of the ear canal (which Dr. Viola had reported as early as 1970), but also of the kidneys and liver at concentrations as low as 250 ppm VCM, but not at 50 ppm. This discovery, however, was kept con-, fider. tial, and it was not even revealed to the National Institute of Oc jupational Safety and Health (NIOSH) until July 17, 1973. Earlier, on September 27, 1971, a patient of Dr. J. L. Creech, Jr., plant physician of the B. F. Goodrich Chemical Com pany in Louisville, Kentucky, died* The patient had been employed for 15 years as a helper and operator in Goodrich's Louisville PVC plant. When first hospitalized, a tentative diagnosis was made of a bleeding duodenal ulcer, but upon re-admittance and after an exploratory laparotomy and biopsy was carried out, he was found to have angiosarcoma of the liver, an exceptionally rare and irreversible cancer which strikes only 1 person in some 50,000, no more than 20-30 persons a year. Eighteen months later, on March 3, 1973, another former employee of the Louisville plant died, and a third died on December 19, 1973, again of angiosarcoma of the liver. Recognizing the rarity of the tumor and learning that all three had worked in the Goodrich PVC plant. Dr. Creech brought the matter to the attention of Goodrich, and then on January 22, 1974, to the attention of the National Insti tute of Occupational Safety and Health (NIOSII) . News of other deaths followed swiftly. On January 29, 1974, Goodrich reported the death of a fourth former employee from angiosarcoma; a report of the death of a fifth employee followed on February 15th. Six days later. Union Carbide advised NIOSH of the death of one of its PVC workers from liver angiosarcoma. Goodyear Tire and Rubber Company announced a vinyl chloride worker zatality from liver angiosarcoma on March 1, 1974, and reported two more such deaths from the same cause on March 22nd. Goodrich reported cases of liver angiosarcoma in two of its living employees ASI 000018484 On April 16, 1974, Firestone Plastics mounced the death of one of its employee?1 from the same disease. Finally, on May 10, 1974, the ha Lionel Cancer Institute diagn 2d another Union Carbide VCM worker as a victim of the same disease. In all, the deaths of 13 workers in PVC and fabricating industries were reported. III. THE SECRETARY'S ACTIONS Two days after Goodrich made its report to NIOSH of its first three VCM worker deaths, an inspection of its plant by NIOSH indicated considerable exposure of workers to VCI-1, and control procedures as well as precautionary monitoring ware recommended. NIOSH alerted other federal agencies and after additional investigation soon concluded tln.t VCM v/as the suspect a gen L: for a new <occupational cancer. On April 5, 1974, the i \ S w5 X o "L u n u Secret. r of Labor, acting on behalf of the Secretary, held a her.ring a- promulgated an emergency temporary standard o f 5 0 ppm TWA1/ lieu cf the pro railing 500 ppm one. At the hearing, industry itself showed concern, and evidence was pre sented that both VCM and PVC plants could reduce concentrations below 50 ppm TWA. An in the past, Dow Chemical spoke out for worker safety and urged that industry exposure be reduced to 50 ppm TWA by operational and engineering changes and that appro priate respiratory protection be g.ivcn whore such level was not attainable. The Assistant Secretary concluded that the evidence demonstrated VCM to be carcinogenic, for man. dee 39 Fed. Reg. 12342. Monitoring and housekeeping requirements were also im posed, and a requirement was included that, if the 50 ppm level was breached, appropriate respirators equipment be furnished workers, The eworgenov order was limited to six months "during which time the whole question of possible exposure of humans to VC would be reconsidered moire fully and in the light of more information, including experiments which are underway at the time." On April 9, 1974, the Industrial Bio-Test Laboratory notified MCA that its preliminary findings in their animal ex posure study showed that angiosarcoma of the liver was produced in mice at a level of 50 ppm of vinyl chloride, and MCA so informed the federal government. On May 10, 1974, the Assistant Secretary again acted. Issuing a notice of proposed permanent rulemaking, he drew attention to the MCA study results and noted that: "the question of a safe level of exposure for humans cannot be deter mined at this time, and may continue as a matter for scientific 1/ Time Weighted Average (TWA) represents a worker's cumulative exposure to a toxic substance during a 9-hour shift. AS I 000018485 9 deliberation for many yearns,'' 39 Pod, Roy. 1GP86. In the interim, he concluded, it, was necessary to abandon the 50 ppm emergency temporary standard and to establish it ac as low a level as can be detected using methodologies sensitive to 1 ppm plus-or-minus 501, i.e., the no-ca]rod "no-detectable" level. This level was to be rescued -through the "institution of engineering controls and work practices an soon as feasible," but respiratory protection was to he afforded where the goal could not otherwise be achieved. On May 24, 1974, notice of a hearing cn the proposed standard to be held before an Advinislnative Law Judge was given, Eight flays of hearings v/are held during June and July of 1971, and additional materials were received fret; interested parties until deptember 25th. In addition, the record or the previous hearing on February 25, 1774, was ordered, to he in cluded. On October 1, 1974, the final standard was promulgated, effective January 1, 1975.2/ See 59 Fed, Hog, 35890, The main provisions are as follows: (1) The r-j tr.nch' r d ay pile ,,,> itm o ma: i . " `iciajj'ors of PVC cl nd to fabric Cl i - ors o J: PVC , bn c- drub or US i n g a 1 r e a dy - 1. V ed"a v produ i {' r* V. a 2 9 c.,mV* -1 V"V. ivs 7.i y 0 (2) In ;pi ace of JL*JVdC- cot i ally ol .scure "no < level " standard, a PC*TM 1.1 s sibl e o;: ocs u vo 1:1L ll1 !. k not gr C cl ' 1 pen averaged ov or an oi ght- hou r pc r i.od 2! H sot, but n peaks of VCM exposure up to 5 ppm during periods not exceeding 15 minutes. 29 C.F.R. 51D10.93g(c). (3) All employers are required to conduct an initial program of monitoring and measurement of exposure levels, but nee: no continue monitoring if initial levels are below the so-called "action level" of 0.a ppm averaged over the eight-hour work day. 29 C.F.P.. 51910.93q (d) . (4) The standard requires that "feasible engineering and work practice controls" be employed to reduce exposure below the permissible exposure wherever possible or to the lowest practicable level if not possible, supplemented by rasoiratory protection. 29 C.F.R. 1910.93q() (2) . 2/ Petitioners' application for stay of the January 1st deadline was granted pending our disposition of the matter. ASI 000018486 10 (5) there respiratory protection is required under the standard, suitable equipment, ns indicated by a chart in the standart, shall be provided, and use shall be required of employees unless the VCM level ro below 25 ppm mi nsured over any 15 minute nsriod, in which case the use or respiratory equipment is optional with the employee until January .1, 197C. 20 C.I-'VA. 51910,D3q(q) (1), (S) Employees working in certain hazardous operations, esucoially those involved in physically cleaning fcho interiors of FVC 'nanuirc'curiiHj reactors, shall be provided protective gar ment a and respiratory protection. 2 9 C.i'.R. 19.10,9 3q (h) . (") A modi, val curve! Hence progasm is roqui red for all c. rdovw exposed to vCM in cf the action level of 0.1 ppm. 2l";M'bK. l.'.ilO. 93q (k) . (\'O* \* Final I'7', in ft Ltion to certain r xcord-koopir.g y r r n.ivc.i'erd: :, .IT entr xw u-'O;'; and containers relit to JM j;c rvc ) \anutac f u :o and FvC rub", lout ion arc required to ; -`' ,s lubelieu w `.th the w ami ug ,'ogene: ' Can cor-Cuspec f Agent". / C,F.R. 19 10.93q (1) t IV. T5 ' . . L Of. ft.ft ? COft't t'liN'l1 ` WVfS (a) Fat it ion or-'s ini tin I claim, is that the available sc {' * k" ic and mod ICUI V i .' s-iiee do m. not establish that the 1 ppm ex;: enure .leva 1 adopted bv hh e Macrofary is voquirod by health or safety con siceratio . is. Tr , oy 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 nay whot-her exposure to VCM at !.ox levels van safe or unsafe. Further, they point to studies of employee health by Dow Chemical over a number of years which concluded chat exposure to VCM below 200 ppm did not lead to any adverse effect. Vie til'id, however, that th e v i d cnee .is err its s a Jicien t to warrant the Secretary's choice, First, it must be remembered than we are dealing here with human .lives, and the record reveals that 1.1 manufacturing plant workers and tw7o fabrication plant workers have already died from ti effects of this potent chemical. Moreover, the animal exposure study , sponsored by MCA, the Industry's own trade association, idonti lied fatal liver angiosarcoma and other kidney and liver diseases at the 50 ppm level. None of the physicians or scientists who testified could identify a safe level of exposure to VCM, nor the precise mechanism by which it produces cancer; yet expert afte expert recommended that this "very virulent" carcinogen be restr ieted to the loxvcst detectable lev^i. Indeed, as one witness, Dr. Kravbill of the National Cancer Institute, testified: AS1 000018487 11 Certainly, tin. re in little margin for safely it a response can be* or gee ted at a leva! below 5u parts per million which in trafc'n .is now only a fj. tty-- .to Id safety factor iii terms of the proper ad standard. According to tonico logical principles, ware this compound a non-creoinogen, then to establish a tolerance or :iafe level, there would have to bo a .'GO to 1 margin of safety In term:,; of a no-ofleet lov'd, and from the experimGilLsiX LlZi Cel OH 'LilG animals, ve don't own hnov; what the no-eifeet level is, Obdondy, this won hi pet cbe allowable level at a small fraction <.>i; a given st'a'dacd of the ulven siaudord, As in Tod'isti'l ol Union Dope rr.r ont, IFA-CIO v, Hodsson, i.timuto- ireous now-: m or: pare a.re 'on trie Cron, levs o t' soioivti':'ic hncci.cdgo , and, though the fact, no 1 finger pointy, it does rot conclude. Under the command of OSh'A, it remains tine duty of the Secretery to act to protect the vioriiinyman, and to act even in circunu;Lanc.iS vhoi - erlsAlng methodo.logy or research is deficwvnt. The Secretary, an extirelating tie ACA c tndy ' s finding from wove'.: to moo, has chosen no red icc the permissible l?vel to flie lowest detectable one. no find no error in this rerpject, (b) failing in tills contention, petitioner strongly urge t nat tho Sicro far:yy broached his statutory mould a to to insure that ^standard... ^elected is a "feasible" one. 3/ Halving on the no- coiled Snell Report, 4/ petitioners claim that VCM and PVC manufacturers will never be cable to reduce lore Is of exposure to 1 ppm through engineering means. Tney point to the conclusion reached by the Snell Report that: -------------------------------------~-----------------3/ 29 U.S.C. 3555(b)(5) provides in part: ASI 000018488 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 OSIIA 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. - 12 The costf; ol: compliance incrsa^e rapidly with decreasing VCM target levels end represent significant engineering uncertainty or ill" feasibility beyond 10 pen ceiling end 2-5 ppm TWA for the- VCM industry and 15-25 ppm ceiling end 10--15 ppm TWA tor the PVC industry. According to the report, [biased on the industry surveys and tnell's irdey. ndont assessments of the state-of-the-art of the teci'.io og'_ . " the standard price of VCM would only rise from 7,`U.d/lb. at. present to 7.69pj/lb, at a target level of 2-5 pun TWA, hut would supposedly soar to 12.71,1/lb, at the "no-detectablo" level. In his senuonaet of roarers in oupourf of the standard, the .'V; rial,-at P icucrary ao'"r.o'0 edcr. d the industry contention and -ho deoil conclusion about trio irfonsibillty of the 1 ppm level, bid' noted that: `'`tabor union spot-men and the Health Research dvcinp- Tnc,, home :*e' p In .m suggested that ouch a level is attainable." The Assistant Secretary wont on ho say: Since there is no actual oviounce that any of aha VC or P "C menu 'ac furors have already attained a 1 ogm level or in fact instituted nil f^vaii. hi a civrinecrir.a and vork practice coutreis, any estimate an to the lowest feasible j eve t attainable must neonsnarl] y involve sub ject;.vo *iudgcwrf. Likewise, the projections of; industry, labor, and others concerning feru.ibil i ty are absent it l.'.y conjectural. In du'd, as Firestone ha:; suggested, it is not pcaeible to accurately go ;cict tho degree of improvement to be obtained from engineering changes until such change i are actually implo rn an cod. We agree that the PVC and VC establishments will not be able to attain a. 1 pp.a TWA level for all job classifications in tho near future. We do beliew, however, that they will, in time, be able to a! sain levels cf 1 ppm TWA for most job classifications most of the time. It is apparent that reaching such levels may require sou.', new technology ; r_d work practices. It may also fce necessary to utilize technology presently used in other industries. In any event, the VC ana PVC industries have already ;nde great strides in reducing exposure levels. (See testimony of Dew Chemical Co,, TR 973). For example, B. F. Goodrich testified (TR 1120) that it has reduce aver?rye expos.ire levels in several PVC plants from 35-40 ppm early this year to 12-13 ppm at the time of thw hearing. We are confident that industrv will continue to do sc. [39 Fed. 'Reg. at 35892.] ASl 0000l8489 lie ca pj'ot agr siv.nci.ajra so c .Lcarly iaroo asiblc o a.; od. .acre frith in thni the record rave .fi.s that ;<> s Lbi llty regard ing the me a t s vara rn:do in a mo of weeks, and a variety of useful ougi eftrinc! n-id work pr an controls hua'c yet to bn inntit-'.ted, In k ho area cf safety, r.ot res trietad ny the s s!;.andards which requ ire ir. o-rovo "'.anus in the d ova j.opiT.'.-nt r\ f j\ x (`7 / i and he is not .limited t.o La a,. i.:'.g senna;-e ae based ;;oniy on (.!;. joes already fully dTM -' j. : ad. Cf ,, oV3 Ik' V, S j ( *y ,' ) ' -i .* ' , *, + V * t.. of .... ?,, B , a. j , 4 :> 1 i1 . 2d 3107" : \j i [ a '-ill <. ~ j. . J. `J i .l i . There iz much / i.n hha re; a'-aoiali'/ ;ln the Spoil lie pm r tindie piTU eluted and largely . pan! or engaged j.n PVC iY!. orrr. the cleaning of. be. i. : a receives h`Y open!' ng the corker phyni <. . 1.1 V eater in. In t hi1 che acnretier f,co;u the vails of 'Z'nii eo no ft .1, the vvksr in, thus nosed to a high concur, hrat: c n o c VCiil. dot cr he-o A now hc.oa vdous methods are currently aval `.able and in. mar in which sue voru* a Is are cleaned by machinery, crai- uiers or same!;/ va.icr a odor high proso-ire. Other sources c exposure ore oueo'inhered In filling tank cars, a-rsuri.ng # 1 V- * repaj.riu ?>.'no 'name;:: other comn- i* : r>vnn a< . Tiie Enn.l.L 'deport indicator chat much or thin may ha alhrdctad, But whether it can or not, the Secretary's camp Hence scheme does not rest only on engineering and work practice con trols, He does mandate that the indu.3t.ry use such technology to the extent tcisible, but, more importantly, he requires that, in addition, rcsp.Lre.tory protection bo used if engineering means cannot bring the VCM level down to the pcroiisridle limit* To bo sure, respirators have their drawbacks. Throe problems were detailed .at the hearings -m' recognized by the Assistant Secretary. Self-contained and air-hose type breathing equipment is bulky, expensive, and infeasible for full-time use, as veil as potentially hazardous in terms of t-Appinc, restricted mobility, and over-orhausrion of -workers. hut the fact remains that they effectively eliminate exposure to VCM, and they* are already bring used by some PVC companies in the cleaning process and at other points in production with good success. 000018490 AS 1 - 14 Like riie industry's claims about the im/possibility of achieving coup!lance through technological moans, petitioners' claim; of dive conuoqunnooc fro;-', the recrairomont of respiratory profaction arc; exaggerated, Xt coon not appear that full-time use of raspirators in naoeesaxy, and the fine 11 Hcport points thin out. i'urthermoro, lightweight, inexpensive cart ridge or Cc' r.rsifjtor-typo respirators f which cun effectively filter out VCi'S at 3 o'.v it':vc3,c, ave not available and. acceptable. Contrary to petitioners' assertionsthe Snell "Report indicates that a variety of respirators are reasonably available. (e> ho ixnd that the doc :e .nry'e directions arc clear, i r: arid certain a-'b that vo 7 are a'ieo entirely feasible, .a. nee goal of the 'i coast e. c-i-v ,:xh ai. .`'"mol can d'finitely retain ni through i to eomblmxoion of toohno3ogica.1 means and .irators. Our ermclxmicn in fair, ::og;.`.d :- buttressed by the fact: that only toir.a G, liOO of the v/orhsrs coming under the standard .... those ?u tho '/CM c-ni Vcc manu1'acfcuring field -- are pot on 1 icily exposed to high or acactant "VUd concentrations, and only a small percentage of them ere actually subject to excessive coneenlr at ion.3 of to chemical du.eirg mteinhmturo, 'hie reaL, ini.ng hx. er-vio o c thoat-x. rig of wormom'.; are iu ube fabrication field v he'','; exposure is already so lor that sr;.a of the petitioners claim true the fnbrioaruts should not oven be under the standard; thane, of aoua.-e, have hoop inui a dud because of th-.ir work with Pit 'ecs in vh:> oh .in final form contains residual amounts of VCM, one the recced vhov;o that two death.* have in tact occurred aim. ng iahrJ.ea.horu. If, in chs future, the monitoring under the. standard inf i x.tus that the VCP level amoner fabricators is sufficiently low and that the. sporadic, un.predictr.bjLe exposure of those workers to residual VCM has bean controlled, the fabricators might wall bo excluded or included in a separate, lass rigorous standard. Cerunmly if `PVC producer's were able to eliminate all residual VCii iron the resin before it is delivered to the fabricator, theme 'would seem to be no reason for their inclusion. But this would bo for the Secretary to decide on appropriate appli cation. or oil his own motion, and, as the record presently stand:-;, their inclusion is amply justified. In any event, compliance is tims-phased and, if the petitioners find that they cannot comply for reasons beyond choir control, OSIUv permits vine amendment of standards. See 29 U,S .C. 6 3 5 (h) (6) (a.) . Upon application and sufficient prcoF~bf such a situation, wo feel certain that the petitioners would obtain relief at the hands of the Secretary. This is especially true of flie "ccm.cer suspect agent" labelling requirements which AS I 000018491 petitioners nrgo are beyond statutory contemplation. We think that the Secretary simply lighting fire v;ith fire" and using the 1&bole to fori iy the dan 7 ar of vinyl chloride forcibly to the attention, of the v-orders. t f. .-nt.br -._ic Cry;?'-Jo Chemical Mfrs, Aeon, v, dounen f b03 F, 3ff '.:3b {ere trr, iV/a-'j . 'they''aoierve no" .Loss troatiaent. Wo have also considered the other arguments of the petitione?:;:? and find them untenable. V. It is our concur: ion that the challenged aspects of the Secretary's virwi chloride a tend a rd are supported- by sub-* scr-utla j widenc-? *L: 1 icero and thd che petitions for re - ! v. CV ' d be du.iad Tar Lac into account the belay occasioned be "bore petit? epic re tdra r hat a ? e ; 'onab.l 3 up croc ,'i to end Lee e.'-dorc ode r that the roe ;.ei a ry * s ray ulotions `infher fb p h ;n f* Y',{ ; ( firreti ne eh iv try i, 3 9 75, r.h 3.1 bo00ma 0f doc f. i ve sidy da-' z after bh 0 date of L ds ordir and tha f the time require-motif no ; o respi ref u.\y prot:'i:` ion co da Luod in 29 C.FdR, S19.l0.91q (g) hi) i - rp-sch: c.n Led accord ;igiy. ASI 000018492