Document Rp0yrZB7ypnQLb963v3apRa8v

876 including about $27 million for capital expenditures. OSHA further estimated that implementing these proposals could save 38 lives and prevent 767 injuries among grain elevator workers each year.- While recommending the application of the grain elevator proposal to mills, OSHA. at the same time, asked for addi tional information on fire and explosion data involving mills. Doug Clark, special assistant to OSHA Administrator Thome *G. Auchter, said this section is a reference to the grain processing industry, which claimed it did not have the injury/fatality problem of grain elevators. This industry includes Sour and other grain mills, rice milling, and cereal breakfast foods. OSHA's notice referred to a suggestion that "the proposed standard apply only to the elevator portion of a mill because the function, design, equipment, and conditions of other portions of a mill vary significantly from those of an elevator." In another area, OSHA would forbid the practice of jog ging the elevator leg, which involves starting and stopping the conveyor belt to free choked grain. Industry Says Proposal `Realistic' While the health and safety director of the AFL-CIO's Food and Allied Service Trades Department claimed the standards were "gutted" to save a few dollars, the executive vice president of the National Grain and Feed Association said, in a prepared statement, that the proposed standards appear "to be more realistic and achievable." NGFA's Alvin E. Oliver applauded the performance-oriented focus of the standards, claiming that "realistic and achievable standards would do more to enhance safety than rules based on unproven or unscientific data." Comments or requests for a public hearing on the stan dard should be sent by March 9 to the Docket Officer, Docket H-117, Department of Labor, Occupational Safety and Health Administration, Room S6212, 200 Constitution Avenue, N.W., Washington, D.C. 20210. For further informa tion contact James F. Foster at Room N3637 at the same address or telephone (202) 523-8151. The text of the proposed grain handling standard appears in the Full Text section of this issue. Litigation ASBESTOS ASSOCIATION, OSHA FILE BRIEFS ON ASBESTOS RULE WITH FIFTH CIRCUIT COURT The Asbestos Information Association further detailed its objections to the promulgation of an emergency temporary standard (ETS) for asbestos by the Occupational Safety and Health Administration in a supplemental brief filed with the US. Court of Appeals for the Fifth Circuit Jan. 3. An emergency temporary standard of 0.5 fibers was issued by OSHA in November 1983 and was challenged immediately by the asbestos industry (Current Report, Nov. 10,1983, p. 587). A Nov. 17 request by the AIA for a stay of the ETS was granted by the appeais court pending court review of the standard in Asbestos Information Associa tion/North America v. OSHA (Nos. 83-4687, 4688 and 4689) (Current Report, Dec. 1, 1983, p. 691). At that time, the court set a hearing date of Jan. 12, 1984, and ordered the industry petitioners and the government to file simultaneous supplementary briefs by Jan. 3, 1984. As they had argued in their earlier memorandum in support of the stay, industry petitioners alleged that OSHA OCCUPATIONAL SAFETY 6 HEALTH REPORTER had failed to meet the four criteria for issuance of an ETS. Prior to issuing an emergency temporary standard. OSHA must show that the ETS is based on "new scientific data revealing either unanticipated hazards or worker risks far higher than previously believed." that workers face an extraordinary risk at current exposure levels, that prompt action is necessary to control the extraordinary risk, and that the evidence on which the agency acts is sufficiently reliable and compelling to override'lhe public's right to a hearing, according to the petitioners. The requirement of new scientific data is supported by legislative history showing that ETSs are reserved for "new hazards" recently "discovered by researchers," the petition ers contended. The AlA asserted that it is this requirement, more than anything else, which distinguishes those cases in which ETSs have been upheld from those where such stan dards were stayed or vacated by the courts. In the case of asbestos, OSHA offers no new data to justify its ETS, the petitioners charged. "By OSHA's own admission, the scienti fic studies on asbestos tend to be cumulative with even the most recent being more than two years old," according to the AIA. `Extraordinary Risk' Required In addition, the petitioners stated that an ETS is warrant ed only if workers face an extraordinary rather than merely a "significant" risk at current workplace exposure levels, claiming that this "extraordinary risk" requirement flows from the statutory term "grave danger" which the Supreme Court contrasted with the lesser showing of significant risk necessary to tighten an existing permanent health standard in Industrial Union Department, AFL-CIO v. American Petroleum Institute (8 OSHC 1586). The AIA asserted that OSHA cannot contend that workers experience extraordi nary risks at current exposures because the agency is rest ing its case on three-year old exposure data rather than current exposures. In addition, the association maintained that the risks calculated by OSHA for asbestos are not extraordinary when compared to those for substances where ETSs have been denied, such as ethylene oxide, ethylene dibromide, and formaldehyde. Further, "OSHA has made no showing whatsoever that prompt emergency action is necessary to control the risks supposedly faced by asbestos workers," the AIA alleged. "OSHA's dawdling since 1975, when it first proposed lower ing the standard to 0.5 fibers/cc, is alone sufficient to refute any notion that emergency action is required." The petition er further asserted that no emergency action is necessary for asbestos because essentially all the benefits OSHA attri butes to the ETS could be achieved through the enforcement of the existing two fibers/cc standard. Disputing that OSHA's evidence is sufficiently compelling to override the public's right to a hearing, the AIA alleged that the agency never relied on any type of peer review and that no "independent" peer review, such as was suggested by a National Academy of Sciences panel, ever took place. "The fact that OSHA secretly had its risk assessment `peer reviewed' by scientists of the agency's own choosing cannot change the result here," the petitioner said, asserting that the peer reviews currently referred to by OSHA lawyers were not included in the administrative record certified to the court on Dec. 13, 1983. In conclusion, the petitioner urged the court to uphold the stay until it enters an order vacating the asbestos emergen cy temporary standard. 1-12-84 Copyright C 1984 By The Buretu ol National Attain. Inc. 0O95-3Z37/84/S0O SO PLAINTIFF'S EXHIBIT ALCOAO 000008775 CURRENT REPORT 877 Agency Cites Abundant Data process was further slowed by new requirements for pre liminary analyses. In its brief, OSHA countered that its estimate of the risks faced by asbestos workers rests on a substantial body of information and is premised on generally accepted assump tions for predicting risks. The agency stated that it had developed its quantitative risk assessment for lung cancer and mesothelioma from an abundance of data, citing its use of eleven epidemiological studies in developing quantitative OSHA's "rational decision" to proceed first with lesser regulated toxic substances in the absence of evidence of grave danger regarding asbestos exposure "should not prej udice the agency's ability to protect workers now, when the gravity of the danger has become clear," the agency concluded. ? risk estimates for lung cancer and four studies for risk estimates for mesothelioma. The risk estimates found by Occupational Nursing OSHA are noticeably consistent with those of other recent risk assessments performed by reputable scientists, the agency-said. NURSING GROUP CRITICIZES OSHA'S REFUSAL TO GIVE NURSES ACCESS TO CHEMICAL INFORMATION Further, independent peer reviewers, while disagreeing with particular aspects of OSHA's analysis, unanimously The American Association of Occupational Health Nurses, agreed that the methodology and results of the agency's risk Inc., claimed that the Occupational Safety and Health Ad assessment were consistent with other well-conducted risk ministration should have included nurses in those groups of assessments concerning asbestos. health professionals that have access to trade secret infor In addition. OSHA maintained that it has demonstrated substantial record support for employee exposure data un mation pertaining to hazardous chemicals in non-emergency situations. derlying 91 percent of the lives estimated to be saved by the The hazard communication standard, issued in November ETS. Discussing the exposure and population figures for the 1983, established the individuals who would have access to drywall removal, renovation, and demolition sector of the trade secret information, and the circumstances for releas construction industry and for the secondary manufacturing ing confidential trade information on chemicals produced or industry, the agency asserted that these two groups account imported by manufacturers. for approximately 191 of the 210 lives saved within the six- The standard established that health care professionals, month life of the ETS and S.210 of the 5,725 lives saved over including physicians, industrial hygienists, toxicologists, and a 20-year period at the exposure level set by the ETS. epidemiologists can review trade secret information in non- "In light of the fact that the agency has determined that a emergency situations, providing certain criteria are met saving of 80 lives for six months and 2,410 for 20 years Nurses are not included in this lisL justifies a finding of grave danger, the Secretary submits However, nurses are qualified to review confidential in that the record strongly establishes employee exposures of formation if they determine that "a medical emergency 4 sufficient magnitude to justify issuance of the ETS in this case," OSHA stated. exists and the specific chemical identity of a hazardous chemical is necessary" to give first-aid treatment Further, OSHA contended that its decisions regarding In a recent prepared statement, AAOHN President Mary whether to issue emergency rules are consistent with the E. Seaver called the exclusion of nurses in non-emergency evolving decisional authority under the Occupational Safety situations "outrageous." She claimed that "occupational and Health Act, The agency based its action here upon its health nurses are the sole providers of occupational health quantification of the risks actually faced by the asbestos- programs in more than 75 percent of the nation's work exposed worker population, according to OSHA. Rejecting settings." In most situations, Seaver claimed, there is no the AIAs argument that the same benefits could be obtained physician or other health professional at the worksite. through enforcement of the existing standard, the agency Ed Baier, OSHA's director of technical support, said argued that benefits would flow from the issuance of an OSHA intended to make a clear distinction between those ETS. "The asbestos ETS is necessary to save worker lives who have access to confidential information in emergency because it requires immediate protection, achievable and non-emergency situations. He noted that nurses have through improved respirator use, for employees currently access to the general information sheet on the chemical for exposed to levels above 2 f/cc, as well as protecting employ treatment purposes. He added that the agency felt it unnec ees exposed between 0.5 f/cc and 2 f/cc," the agency essary to include nurses among those having access in non- maintained. emergency stituations, since in many situations access Finally, OSHA stated that new information and evidence would be for the purposes of conducting a study. had indeed led to the issuance of the ETS, citing an April Jennifer Silk, OSHA project director for the hazard com 1983 meeting attended by Assistant Labor Secretary Thorne munications standard, agreed that the agency concluded G. Auchter at which Irving Selikoff, a recognized expert in that in most non-emergency situations nurses would be the field of asbestos epidemiology, described the health working under the auspices of a physician with the physician effects of asbestos exposure as well as a risk assessment having access to confidential information. draft presented to Auchter in July 1983 which presented However, Seaver claimed that without access to this reliable evidence demonstrating the existence of a health confidential information nurses will be unable to perform emergency caused by asbestos. "vital functions," resulting in increased cost to industry to The delay between issuance of the proposal to amend the hire someone to do routine procedures normally done by asbestos standard and issuance of the ETS does not indicate occupational health nurses. The organization plans to lobby an absence of emergency, according to OSHA. Noting that it Congress and work with White House advisors to get the had proposed a revision of the asbestos standard in 1975, the standard changed, according to the association. agency explained that asbestos had had to compete with 20 other toxic substance projects, that the agency had changed OSHA's Perception of Nurses its plans concerning bow to proceed with the proposal as it Paul Ryan, a spokesman for AAOHN, said that OSHA's related to the construction industry, and that the rulemaking refusal to include nurses in its lists of health professionals is 1-12-S4 OccupationaiSitaty & Hearth Reporter 009S-3237/S4/S00.50 ALCOAO 000008776