Document Byqj5Q44pmBq0QnYxjx13D3QJ

JOSEPH E, KELLER JEBOME H. HECKMAN CHARLES M. MEEHAN WILLIAM H, BORGHESANI, JB ROBERT E.TIERNAN WAYNE V, BLACK David l, hill martin w beecovici PETER M, NEMHOV JOSEPH E, HADLEY CAfiOLE C, HARRIS WILLIAM W PUGH PETER THOMAS SMITH LAW OFFICES Keeler and Heckman 1130 17TM STEEET, N, TV. SUITE lOOO WASHINGTON, D. C. 20036 January 16, 1975 TELEPHONE 02 S&6-2TOO CABLE LDDEESS "EELMAN" Mr. Anton Vittone President B. F. Goodrich Chemical 6100 Oak Tree Boulevard Cleveland, Ohio 44131 Company Re: Oil, Chemical and Atomic Workers Union International v. Occupational Safety and Health Administration, United States Court of Appeals for the District of Columbia Circuit, Case No. 74-2071 Dear Tony: The primary purpose of this letter is to help everyone on the VCM and PVC Resin Producers Committee keep their files up to date by letting ~theffi know that Firestone and Union Carbide have now filed two Motions in the referenced proceeding. The companies have jointly filed for Leave to Intervene and also for dis missal of the Petition for Review filed by the Oil, Chemical and Atomic Workers Union International. We are not enclosing copies of the pleadings since we believe that attorneys for most of the com panies have already been served with the same. On the other hand, if anyone requires a copy, we do have the documents in our files. We might also venture to guess that the Motion for Leave to Intervene will certainly be granted, just as those we and Tenneco-Air Products filed were granted earlier. While writing to report to you on this matter, we thought it might be worthwhile to bring to every one's attention an article entitled "Arsenic Industry and Cancer" which appeared in the much read Outlook section of last Sunday's Washington Post. Since we cannot determine whether this article has been syndi cated or not, it occurred to us that forwarding copies might be worthwhile. PRIVILEGED AND CONFIDENTIAL GENC016792 Mr. Anton Vittone January 16, 1975 Page Two The article does not deal directly with VCM, of course, although it certainly illustrates once again the fact that we can now expect to see vinyl chloride mentioned in any article relating to a major industrial health hazard (see paragraph four of the reproduction) . You may be more interested in noting the quote in the next to last paragraph of the article. If Mr. Foster's comments are accurately recorded as we are almost certain they are, we would only hope that the Panel in the Second Circuit which is working on the opinion in our case has occasion to read the Post care fully. If it does, it will see that_ OSHA spokesmen are emphasizing their responsibility to direct their carefuI~attention to feasibility while taking the positTnrTTJr^Ehe^VCM case"'that a Standard conceded~~to be es"sentiaiiy^Tnfeasible to accomplishTshould be promulgated. Enclosure cc: VCM/PVC Resin Producers Committee VCM/PVC Lawyers' Subcommittee PRIVILEGED AND CONFIDENTIAL G E N C O 16793 m mm m 1 Arsenic, Industry And Cancer ByBiU-Richiirds and Rachel Scott Richards is a Washington Post metropolitan staff writer. Scott, whose book, "Muscle and Blood," was published last year, is director of health and safety for the Illinois Industrial Commission. American Smelting and Refining Company photo All processing of arsenic in the United States is done at the Tacoma plant of the American Smelting and Refining Company. GENCO16794 ARSENIC has gained a certain no toriety over the years as a parlor room poison--death by the teacup, ad THE WASHINGTON POST trnniior, Jon. II, 19?S ministered by smiling spinsters seek- ug to polish off their victims in as granbus a manner as possible. But there Missed Signals Basis for Standards nothing gracious in the deadly evi dence beginning to emerge, far from the lace and the china teacups, that ar senic causes cancer and that a million or more American workers may be un wittingly putting their lives on the line through daily exposure to the chemical on the job. IT IS HARDLY any secret that ar senic can cause cancer. The first sug gestion that it might be a carcinogen was raised In 1820. But the Allied and Dow disclosures pose the cardinal question--why were workers exposed to hazardous amounts ofjirsenic in the H-rsfpiwcf' _ THE CORNERSTONE study, how ever, accepted until recently as in disputable evidence on the potency of arsenic and used as the basis for the present arsenic exposure standards, was done by Dr. Sherman Pinto in 1963, Pinto's research team studied 229 deaths among copper smelter workers Concern began growing last summer when two of the chemical industry's giants--the Dow Chemical Company and the Allied Chemical Corporation-- admitted in an unusual display of cor porate candor that workers who once handled Inorganic arsenic at their Mid land, Mich., and Baltimore pesticide plants were dying of lung and lymph cancer at an alarming rate. Allied reported that among workers retired from its Race Street plant in Baltimore lung cancer was seven times that of other males in the city and lymph cancer rates were six times higher than expected. Dow's separate study at its now-closed Midland plant revealed a 32.9 per cent cancer rate among workers exposed to inorganic arsenic in the 1950s, Norman Herington, a spokesman for Allied Chemical, recently supplied one answer. "I'm sorry to tell you," he said, "that until 1913 we didn't have any sus picions that the conditions existing at (Allied's Baltimore plant) were causing cancer." According to Herington, "none of the manufacturers who were makin'jj arsdlMtlSl Cflffllibund"TTad any.. indications'1' there were cancer prob'Tcms associated wun inorganic arsenic. Curiously, Allied, Dow, ASARCO and the other manufacturers, with bil lions of dollars in resources and sta bles of researchers, apparently man aged to miss, or ignored, some disturb ing warning signs--reports stretching back to the 1930s linking arsenic with several types of cancers. exposed to ,5 milligrams of inorganic arsenic^er^ubicjneter>>ofai^ at ASAkUo's Tacoma plant--the currgal federalex^osurestandard--and com pared ihem to other worker* at the smelter who he claimed were not ex posed. He discovered almost no differ ence between the two groups and con cluded that chronic exposure to ar senic did not cause excess amounts of respiratory cancer. Industry quickly pounced on the study done by Pinto--who was then medical director of the same ASARCO plant in Tacoma--disregarding the contrary evidence. Worse still, Pinto's findings became the basis for the present federal stand ards for inorganic arsenic exposure af ter 1 hey were accepted by the Ameri ^^While the numbers covered by the ^Bidies are relatively small the impli cations for industry are enormous. `This isn't something new that is just bursting out," Dr. J. William Lloyd, a biostatistician for the Na can Conference of Governmental In dustrial Hygienists (ACGIH), a quasi Some federal health experts now con cede that the ^or^jy^atggjjicjnenace may be as substantialJ^Llhe^^yorkplace asThat nosed bv the more widely pub licized vinvl chloride cancer connec tion discovered a year ago. Inorganic arsenic is a byproduct of the smelting process. Some 15 copper, tional Institute for Occupational Satety and Health, said recently. The reason the companies missed the warn ing signs, said Lloyd, was because "nobody was looking. Sometimes be cause they didn't want to look, and sometimes because they didn't think to look," official body which, until 1970, was the only organization setting standards for toxic dusts and fumes in the work place. The ACGIH standards were Incorpo rated into the old federal Walsh-Healey Act, which regulated working con ditions for plants operating under fed lead and zinc smelters ship it to the lone processor in the United States, A few of the missed signals Include**1 eral contracts, and were adopted by the states in their regulations a* well. the Tacoma, Wash,, plant owned by the American Smelting and Refining Com Reports dating back to the 1930s of suspiciously high skin cancer rates With the passage of the Occupational Safety and Health Act of 1970, the pany (ASARCO). Arsenic trioxide, an among"*persona -who had inorganic ar Pinto-based standards were again inorganic arsenic compound that is the senic compounds prescribed for skin, called upon. most widely used form of the chemi cal, shows up In at least 44 different major Industries by a federal count, from tinting windshields in Toledo to spraying roses In Texas. The United Steelworker* Union alone estimates that 40,000 or more of its workers may be exposed. Federal estimates of ex posed workers run to 1.5 million. While there are substitutes for ar ailments. One study In 1958 noted that 21 skin cancers were observed among 180 patients who used inorganic ar senic preparation*. - raidings oy British researchers In 1948 that high lung and akin cancer rates were turning up among factory workers involved in the manufacture of sheep dip, containing inorganic arsemc. Despite the reliance on Pinto's data by the ACGIH and later the Occupa tional Safety and Health Administra tion (OSIIA), which adopted the cur rent federal arsenic standards, a num ber of federal investigators are now convinced that the Pinto findings are seriously flawed. As early as 1969, Lee and Fraumeni pointed out in their study that Pinto's GENC016795 senic in some secondary industries the most seriously exposed workers--in copper and lead smelters where inor ganic arsenic is a major byproduct of smelting process--are virtually ^^Bndemned to further exposure, if in^oustry spokesmen are to be believed. In pleas to federal regulatory offi cials to keep the present exposure standards--which were in effect lor Allied workers--the metal smelting in dustry claimed any change at this point would be economically disas trous. * A 1959 study of workers at an Eng lish nickel refinery, where ores coni tained a high arsenic content, showing 45 eases of lung cancer and two of akin cancer over a decade. A study in 1969 by Drs. Frederick P. Lee and Joseph F. Fraumeni, of the National Cancer Institute, of 8,047 American metal smelter workers. The workers showed a threefold excess of respiratory cancer mortality and, when they were heavily exposed for long pe riods to inorganic arsenic, as much as eight times the expected mortality rate conclusions compared exposed and non-exposed smelter workers but ne glected one critically additional step-- Pinio failed to compare his two work er groups with others outside the plant. The two researchers noted that while Pinto seemed correct in saying fciere was little difference between leencer levels inside the smelter, the plant population as a whole showed lung cancer rates as much as three times the general population. Pinto, contacted last week by The Washington Post, acknowledged that no comparision had been made in his study with people outside the plant. "The criticism has been raised about non-exposed people," he said. "I don't believe it too much. 1 don't pay much attention to it." ASARCO Assurances AT THE LATEST round of federal hearings last September to ex plore now exposure standards for in organic arsenic, ASARCO showed up as the major arsenic industry witness, with a panel of experts including ['into, now a semi-retired consultant to the giant smelting company. Pru dently, Pinto kept in the background and let ASAKCO's other spokesmen assure the federal representatives that there was little cause for alarm and certaiii'y no reason to tighten up the pre\ ailing standards. ^ASARCO once again hauled out the Bigtnal Pinto study, saying that the Endings, and an update also done by Pinto, indicated there did not seem to be any increased mortality from ar senic exposure among th* Tacoma smelter workers. With this, ASARCO called for retaining the current expo sure standard and suggested an inde pendent study of the findings of their colleagues at Dow and Allied. What they neglected to mention was that in addition to the heavy criticism of the original pinto study the update was attacked last year by Dr. Samuel William Jr., a chronic disease epide miologist for the Washington State Health Department, for its lax han dling of statistics. Milham pointed out that Pinto neg lected to include in his study of smel ter workers the secondary cause of death listed on death certificates. If a worker hod pneumonia on his death certificate as the primary cause of death Pinto listed that--and skipped the notation that the man also had lung cancer. "We found that he missed 25 s_er cent of the lung cancers at a conservative estimate,'' Milham 'sal'cC in tact, instead of the 18 lung cancers 'afre predicted by standard mortality tablet for Pierce County, Wash., smelter workers, Milham discovered 40. Asked about Milham's findings, Pinto said, "In my own mind I'm quit# sure that my material is accurate." Nevertheless, he said he had turned over all the material he had on death! to Dr. Philip Enterline, professor of epidemiology at the University of Pittsburgh, for an "outside" analysis, "Tlie criticism has been raised that I'm not a professional codifier so now the information is in the hands of a professional. He's a highly regarded expert in his field and I think industry is doing the right thing when they get an unbiased opinion like his." Enterline, Pinto noted, received * contract seven years ago from AS ARCO to do consulting research for the company. The choice of the Pitts burgh researcher this time was sug gested. according to Pinto, by ASARCO's vice president, Kenneth Nelson. H was Nelson who testified at the OSHA hearing last fall for ASARCO in defense of Pinto's earlier findings. .Nelson told the OSHA investigator* at the hearing that a decision to cut back on exposure levels among Its workers could be financially ruinous for the company and later said it could force the shutdown of lead and copper smelters throughout the West. "There is absolutely no conflict of interest (in the choice of Enterline)," Pinto said last week. "He would be the first to tell me if I were wrong." The "22 Milestones" WHAT HAPPENS now concerning arsenic is up to OSHA, but the preliminary indications are not encour aging. In an interim report following the hearing the National Institute for Occupational Safety and Health, OSHA's own research arm, flatly de clared that inorganic arsenic is a car cinogen and "any exposure to inorganie arsenic in excess of background levels should be considered an unaev eeptable risk" until new data are avail able. OSHA dutifully accepted their com ments, filed them away, and embarked on what is known in the agency as th "22 milestones"--the steps it must take before setting -out a permanent stand ard for arsenic exposure. Among those steps is the consideration of relevant research data on arsenic. OSHA staf fers handling the project acknowl edged recently that high up on the list of research si ill considered "significant" arc the two Pinto studies. Moreoever, there appear to b strong indications that OSHA may end up compromising the safety of workers exposed to inorganic arsenic for th economics of the chemical and smelt ing industry. "Whatever we do must be feasible, regardless of what NIOSH recom mends." James Foster, a spokesman for OSHA, explained recently, "NIOSH specifically deals with the sci entific, medical and technical aspects of this. On the _gther hand it's our job to loojv_at_%j]ai this is going to cost incddh^yji^wellJsj^^^oTImrThinss.' ixo matter wnat tisifA decides to do, traveling the 22 milestones is certain to take the agency far into 1975 before any tougher standard is set to protect workers from a known carcinogen. And almost certainly the process will involve another public hearing and yet another appearance of Dr. Sherman Pinto and his arsenic study. xo rC->. o U