Document MM8o6xomwMEkdLpr2dM9p3OoV

UC 14*2 UNION CARBIDE INTERNAL CORRESPONDENCE ic Qq ^ CQpjf-------- CHEMICALS AND PLASTICS To (Name) Division Location Mr. J. W. Whittlesey Mr. R. W. Lasher Mr. A. E. Stafford/ Mr. P. Pederson Mr. K. G. Morlock Copy to SOUTH CHARLESTON PLANT P. 0. BOX 8004, SOUTH CHARLESTON, W. VA. 25303 Date November 21, 1977 Originating Dept, Answering letter Pat* subject United States Appeals Court Decision The attached report on a United States Appeals Court decision may cause us some problems on our "fabricated products" status. By copy of this note I am asking Mr. Whittlesey to give us an opinion regarding the proper stance to take concerning customer use of our latex and solvent vinyl resin products. RNWJr./pm Attachment ucc 036545 JOSEPH E. KELLER JEHOME H. HECKMAN rwirnts M- MEEHAN WILLIAM H. BOBGHE5ANI, JB. ROBERT 5. TIEHNAN WAYNE V. BLACK DAVID L. HILL MARTIN W. BEBCQV1C1 PETEB M. NEMXOV JOSEPH E. HADLET, JR. CABOLE C. HARRIS PETES THOMAS SMITH MICHAEL T. MOHHONE LABST S. SOLOMON JOHN B- DUBECX CHBISTINE A. MEaOHEB SHIRLEY S FUJIMOTO LAW OFFICES Kelxjeh and Heckman MOO 17TM STREET, N. W. sum 1000 WASHINGTON, 3>. C. 20030 November 18t 1977 RECEIVED NOV 211977 r. K. wheeler. JR. TELEPHONE aoa 407-1100 CABLE ADDRESS "KELMaN'' WRITERS DIRECT DIAL NUMBER (202) 457-1116 To: SPI-PVC Safety Group SPI-PVC Manufacturing Technology Committee SPI-PVC Health Committee Gentlemen: The attached report which we think you will find : self-explanatory concerns a recent decision of the United States Court of Appeals for the Second Circuit. In that case the Court overruled an Occupational Safety and Health Review Commission holding that the mandatory monitoring in the Emergency Temporary Standard for vinyl chloride did not apply when it would be useless, that is, when it could be reliably predicted that vinyl chloride would not be present above the permitted limits. The new Second Circuit decision would require man datory monitoring wherever vinyl chloride might be present. Since the same mandatory monitoring language is employed in the final Occupational Safety and Health Adminis tration Standard regulating vinyl chloride exposure, this decision would appear to require at least initial monitoring in all areas where vinyl chloride exposure might occur. Accordingly, relative to areas where monitoring for vinyl chloride has not been conducted because it was assumed not present in amounts which would exceed the permissible expo sure limits, it would now seem prudent to conduct and compile a record of initial monitoring for vinyl chloride exposure* "t 4. - 036546 SPI-PVC November 18, 1977 Page Two Should you have any questions, comments or suggestions relative to this or any other VCM/PVC matter, please do not hesitate to let us know. Cordially yours. Enclosure cc: Mr. Frank Jones, Chairman SP1 Vinyl Dispersions Division Mr. Jerome p. Carroll I 843 Curr nt Report :c ////7/77 . Litigation that the mandatory language of the standard was clear and there was no indication in the secretary's introductory com EMERGENCY STANDARD REQUIRES MONITORING ments that any covered employers would be exempt from WHEREVER VC IS RELEASED, COURT DECLARES the duty of monitoring for vinyl chloride gas. cc Monitoring of every operation in wbich any vinyl chloride was released was required by the emergency temporary standard for vinyl chloride, regardless of an employer's In the court's opinion, the secretary's interpretation of the standard as requiring monitoring of every operation in which any vinyl rhinride was released was better rafoliated than the ability reliably to predict the concentration of this gas in the air, a federal appeals court ruled November 4. - -- -% This decision of the U.S. Court of Appeals for the Second commission's to achieve the congressional goal of accident prevention and protection against potential clanger. ^Although Western Electric's tfhrts to predict the amount Circuit in Marshall v. Western Electric. Inc. and OSAHRC (No. 77-4076) reversed a ruling of the Oc cupational Safety and Health Review Commission reported of vinyl chloride in the air breathed by its employees were $ sound and sensible, it should not be permitted to substitute 7 A its monitoring method for that prescribed by the secretary," at 4 OSHC 2021. The court specifically rejected the com &- the .court declared. The court also described as "unfor- mission's "reliable prediction" exception to the monitoring *1 tunate" the camndsaian's characterization of monitoring as requirement Western Electric was cited for violating 29 'v CFR 1910.93- --~ a "useless act" predicted from in situations in which it could the physical circumstances be reliably that vinyl------- q(c) (1) following an inspection of the firm's electrical com chloride concentrations would be below the permissible ponents producing plant in Lee's Summit Mo. As a part of v maximum. The unequivocal language of the standard does the process for insulating these components, heated metal not support a "reliable prediction" limitation on the duty to rings are dipped into a compound known as "Hysol," a monitor, the court ruled. Accordingly, the secretary's inter plastisol containing polyvuiyi chloride suspended in a liquid pretation of the standard is the only reasonable one, in the plasticizer. When Hysol is heated to a temperature of 360 court's opinion. -------- ^- ' degrees Fahrenheit by the metal rings, the polyvinyl chloride The case was remanded to the commission for the sole fuses with the plasticizer and coats the rings. At the same purpose of entering a final order enforcing Judge Dixon's time, the polyvinyl chloride releases vinyl chloride into the decision. " air in the form of a gas. :: t . This decision, in wbich Senior Judge Steny R. Waterman An industrial hygienist for Western Electric decided that '" '"-1 and Circuit Judge Walter R. Mansfield joined Anderson, will : > because the Lee's Summit plant used neither vinyl chloride appear in a future Decisions supplement r nor polyvinyl chloride resin as a raw material, its operations were not subject to the monitoring requirements of the emergency standard. However, be did monitor the operation which he concluded would release the most vinyl chloride. Ethylene Dlbromldo After determining that the ambient air in the area monitored contained nonhazardous concentrations of vinyl chloride, be assumed that workers in other areas of the plant would be INSTITUTE RECOMMENDS CEILING LIMIT fill . : OF ONE MILLIGRAM. ENGINEERING CONTROLS 7? safe and, therefore, did not monitor any other plant Workplace concentrations of ethylene dibnomide (EDB) operations. should be limited to a ceiling level of one milligram per The compliance officer who conducted the inspection of cubic meter of air as determined by a sampling period of 15 Western Electric's plant took three samples of the air in the minutes, according to a criteria document prepared by the Hysol-dipping tank, one of which revealed vinyl chloride in National Institute for Occupational Safety and Health. the air at a concentration of 1.7 parts per million. The NIOSH recommendations for an EDB standard were Review Commission Judge Paul Dixon rejected the com transmitted to the Occupational Safety and Health Ad* pany's argument that Hysol was a fabricated product and, . ministration, which announced earlier this year that it therefore, exempt from the standard, concluding that the planned to issue employer guidelines on the substances operation was a form of fabrication to which die standard (Current Report, September 8,.p. 443). , ^_ ' K- applied. He also rejected the firm's claim that in order to . EDB, which is used as a gasoline additive and a pesticide, - ^ r constitute "release of vinyl chloride." readines of the am- Is chemically related to the pesticide dibromochloropropane - bient AUtfnust exceed 9 ppm] Relyyinngg!on the plain language u: (DBCP), linked earlier this year to cases of worker sterility of the stamUlU, WhlOl F physical monitoring of any - at chemical plants in Lathrop, Calif,, and MagnoUa.Ark., I 0,5 f operation releasing vinyl chloride gas, Dixon held that the ' - (See related article in this lone.) , ^ employer violated the standard by foiling to the -V According to NIOSH, human and experimental studies in-, ring-coating process. rrs---''-Sfcw . dicate that EDB exposure may lead to ocular, dermal, and The commission, setting aside Dixon's decision, held that respiratory irritation, in addition to systemic effects on the ^4^ the employer could reliably predict from the physical cir cumstances that the concentration of vinyl chloride in the air resulting from the coating operation would be well below the liver, kidneys, spleen, cardiovascular system, and nervous mm4mh - i 9V'.' _ l/BWIU* >* i ''ifT*'*''<*'* sy dA" l Animal data, according to the institute, indicate that EDB c danger level set by the secretary. Fbrtnal physical monitor * exposure may produce in animals sterility, cancer of r ing was not required, the nia reproductive system, and. malformations Senior Circuit Judge Robert P. Anderson, writing for tta^ damage In offspring. court, concluded that the commission's interpretation of the'v The relevancy of these findings : emergency standard was "unreasonable." Anderson noted " not yet been established," NIOSH reported. However. -- * - Copyright C 1977,by Jho Buraou o( Nationai^ Affofri, Inc. -*-.*-*.sAlu