Document VjLxjpBLp7RxGJj0jYBm8vrvo

cd&i 'ftux/ucU- and Cbmtcai INC INTEROFFICE MEMORANDUM j0_______A. R. Adams____________ From J T Sebastianelli a.cc: T. Barr_ T. L. Carey J. A. Dyrkacz F. M, Ferrell R. Fleming Date May 17, 1974 Subject Industrial Union Department AFL-CIO vs. Hodgson - Asbestos Standards Case (Location, Organization, or Department) (Location, Organization, or Department) J. F. Healy J. V. Heider/file R. H. Schenck W. M. Smith E. M. Spurlock Pursuant to your request, attached please find a copy of the subject case which was xeroxed from the Occupational Safety and Health Reporter. The OSHA reporter has been forwarded to the Valley Forge Law Library from the T-Town Library. JTS:1j Attachment m i7m J, T. BARR (320) .' .> ' AP00000806 Industrial Union Department, AFL-CIO . Hodgson 1 OSHC 1631 Occupational Safety and Health Cases INDUSTRIAL UNION DEPARTMENT, AFL-CIO v. HODGSON United States Court of Appeals for the District of Columbia Circuit On petition for review of the Secre tary of Labor's standard for exposure to asbestos dust under the Occupational Safety and Health Act. INDUSTRIAL UNION DEPART MENT, AFL-CIO, et al., Petitioners v. JAMES D. HODGSON, SECRETARY, DEPARTMENT OF LABOR, Respon dent; ENVIRONMENTAL DEFENSE FUND, INC., Intervenor, No. 72-1713, April 15, 1974. George H. Cohen, Elliot Bredhoff, and Michael H. Gottesman for peti tioners. Walter H. Fleischer, Eric B. Chaikin, and Michael Kimmel, Department of Justice, and Michael J. Levin and Baruch A. Fellner, Department of Labor, for respondent. Scott H. Lang and John F. Dienelt for intervenor. Alan B. Morrison and Arthur L. Fox II for Health Research Group as amicus curiae, urging reversal. Joseph W. Burns and John P. Keegan for Asbestos Information Association/ 10SHC 1632 Industrial Union Department, AFL-CIO v. Hodgson North America as amicus curiae, urging affirmance. Before McGowan, Leventhal, and MacKinnon, Circuit Judges. JUDICIAL REVIEW I. Adequacy of standards--Secre tary's obligation Secretary of Labor, in defending stan dards that are challenged, must provide reviewing court with careful identifica tion of reasons why he chooses to follow one course rather than another, whether choice purports to be based on existence of certain determinable facts or on policy judgments. STANDARDS 2. NIOSH criteria document--Weight to be accorded by Secretary Recommendations of National In stitute for Occupational Safety and Health in form of criteria documents that describe safe levels of exposure to hazardous substances are meant as aid to Secretary of Labor in promulgation of standards, not as conclusive determina tions on question of adequate exposure levels. 3. Factors considered in promulgam--Economic feasibility Factor of economic feasibility can properly be considered in Secretary's decision to delay implementation of tougher standard in order to allow em ployers to make needed changes for coming into compliance. 4. Asbestos--Four year delay Secretary's decision to retain five fiber standard for asbestos exposure for four years before requiting reduction to two fibers is appropriate to allow suffix cient time to permit orderly industry wide transition since indeterminate degree of risk involved is counter balanced by considerations of feasibility. 5. Asbestos--Industrial compliance capability--Remand Secretary's failure to explain "reasons of practical administration" for preclud ing variety of standards for different kinds of asbestos and of workplaces warrants remand of this aspect of stan dards to Secretary for clarification or reconsideration. 6. Asbestos-Compliance provision of standard Compliance provisions of 29 CFR 1910.93a(f)(l), which requires that com pliance program be undertaken if asbes tos exposure limits are exceeded, and of .29 CFR 1910.93a(c)(l)(iii), which re quires local exhaust ventilation systems for all tools that may produce or release asbestos fibers in excess of exposure limits, do not apply only in those instances in which violation has already been detected. 7. Asbestos--Records of exposure levels--Three year retention period-- Remand Secretary's failure to explain decision to require only three year retention period for records of asbestos exposure levels detected by monitoring and absence of adequate assurance in record that requirement 'will provide data needed for research into causes and prevention of asbestos related disease warrant remand of recordkeeping re quirements to Secretary for clarification. Full Text of Decision McGOWAN, Circuit Judge: This direct review proceeding presents a classic case of what Judge Friendly has aptly termed "a new form of uneasy partnership" between agency and court that results whenever Congress delegates decision making of a legislative character to the one, subject to review by the other. Associated Industries v. United States Dept, of Labor, 487 F.2d 342, 354 [1 OSHC 1340, 1348] (2nd Cir. 1973). The angularity of this relation ship is only sharpened when, as here. Congress-with no apparent awareness of anomaly-has explicitly combined an in formal agency procedure with a standard of review traditionally conceived of as suited to formal adjudication or rulemaking. The federal courts, hard pressed as they are by the flood of new tasks imposed upon them by Congress, surely have some claim to be spared additional burdens deriving from the illogic of legislative compromise. At the least, it would have been helpful if there had been some recognition by Congress that the quick answer it gave to a legislative stalemate posed serious problems for a reviewing court, and that there would inevitably have to be some latitude accorded it to surmount those problems Industrial Union Department, AFL-CIO v. Hodgson 1 OSHC 1633 consistently with the legislative pur Foreword, Legislative History of the poses. The duty remains, in any event, Occupational Safety and Health Act of to decide the case before us in accor 1970 (hereinafter Legis. Hist.) dance with our statutory mandate, how ever dimly the rationale, if any, under lying it can be perceived. The petition before us seeks review of standards promulgated by the Secre tary of Labor under the Occupational Safety and Health Act of 1970, 29 U.S.C. Secs. 651 et seq., (hereinafter OSHA). The standards in question regu late the atmospheric concentrations of asbestos dust in industrial workplaces. Petitioners are unions whose members are affected by the health hazards of asbestos dust. They challenge the time table established by the standards for the achievement of permissible levels of concentration, and object to portions of the standards concerning methods of compliance, monitoring intervals and techniques, cautionary labels and notices, and medical examinations and records. We remand two of such issues to the Secretary for further considera tion. In all other respects, the petition is denied. OSHA, the first comprehensive at tempt by Congress to deal with these problems,2 covers every employer whose business affects interstate commerce.23 Eschewing any attempt to establish sub stantive provisions to control all these various employers, the Act erects a general framework to govern the devel opment of regulations, and delegates the task for formulating particular health and safety standards to the Secretary of Labor. Civil and criminal sanctions are provided to enforce compliance. OSHA specifies the procedure to be followed in the promulgation of stan dards, and provides for the establish ment of a research institute and the appointment of advisory committees to assist the Secretary.4 The substantive provisions of the Act impose a general obligation upon employers to provide safe working conditions. 29 U.S.C. Sec. 654(a)(l)(1970). The Secretary is re quired to promulgate standards to con trol particular health hazards that come to his attention. Certain types of con I. A. The Occupational Safety and Health Act, trols, including monitoring, medical examinations, warnings, record keeping, and specific protective measures are specified by the statute itself, but the Technological progress in industry decision as to when and how they appears not to have been accompanied should be required with regard to par uniformly by corresponding reductions ticular health hazards is left to the in the health hazards of industrial work Secretary. ing conditions. More than 2.2 million persons are disabled on the job each B. Asbestos. year, and in 1967 the Surgeon General estimated that approximately 400,000 new cases of occupational disease would occur in each succeeding year.1 The Chairman of the Committee on Labor and Public Welfare summarized the problem as follows: Not only are occupational diseases which first came to light at the beginning of the Industrial Revolu tion still undermining the health of Asbestos is a generic term applicable to a number of fibrous, inorganic, silicate minerals that are incombustible 2 For summaries of prior regulation, see Cohen, uote i supra, 785-89; Comment, OSHA: Employer Beware, 10 Houston L. Rev. 426, 426-28 (1973). 3The United States, and state and local governments, are exempted from OSHA. by 29 U.S.C. Sec. 652(5) (1970). workers, but new substances, new ^The Act establishes within the Depart processes, and new sources of energy are presenting health problems of ever-increasing complexity. 1 House Comm, on Education and Lcbjr, Occupational Safety and Health Act, H. R. ltep. No. 91-1291, 9tst Cong., 2d Seat. 14 (1970); Cohen, The Occupational Safety and Health Act: A Labor lawyer's Overview, 33 Ohio St. L. J. 785, 739-90 (19721. ment of Health, Education, and Welfare & National institute for Occupational Safety and Health (NiOSH) which is authorized to "develop and establish recommended occupa tional safety and health standards'* for trans- . .mission to the Secretary of Labor. 29 U.S.C. Sec. 671. The Secretary of Labor may also appoint an advisory committee to assist him in his standard-setting functions. In (his in stance a 5-member Advisory Committee on Asbestos Standards was constituted, consisting of two employer and two labor members, ana one representative of the public. 1 OSHC 1634 Industrial Union Department, AFL-CIO v. Hodgson in air. Its commercial value is high, and its uses are nutty and varied. Asbestos can be woven into cloth., used in powder form, or incorporated into materials of various shapes and consistencies. Almost one million tons of asbestos are used in this country annually; and, for many purposes, it cannot easily be replaced with other substances.* Unfortunately, asbestos is as hazard ous to health as it is useful to industry. During its production and use, tiny asbestos fibers are released as a dust in the air, and, over the course of this century, thousands of workers have been killed or disabled by the effects of inhaling these fibers. There are no precise figures concerning the number of workers involved, but it is estimated that three to five million workers are exposed to some extent to asbestos fibers in the building construction and shipyard industries alone. While OSHA was under consideration in Congress, the health hazards of the asbestos industry were among the examples used to stress the need for legislation.57 86 C. Proceedings before the Secretary Within a few months of the effective date of OSHA, petitioners requested the 'ecretary to establish an emergency jtandard to control concentrations of asbestos dust. The Secretary promptly issued a temporary standard and set in motion the procedure for establishment of a permanent standard. Notice of the proposed rulemaking was published, and interested persons were invited to sub mit their views. NIOSH submitted its 5Occupational Exposure to Asbestos NIOSH Criteria Document, 1972). App. 1-62. 6Id. at 62. "^Legislative History at 319, 412-13, 1002. The Secretary expressed the problem as fol lows (37 F.R. 11318): No one has disputed that exposure to asbestos of high enough intensity and long enough duration is causally related to asbestosis and cancers. The dispute is as to the determination of a specific level below which exposure is safe. 8Undec 29 tl.S.C. Sec. 65S(c>, the Secre tary can issue an immediately effective emer gency standard without observing the pro cedural requirements for a permanent standard if fi) employees are exposed to grave danger, and (2) the emergency standard is necessary to protect them. The Secretary must then publish a permanent standard within six months. recommendations, as did thb Advisory Committee. These were made public, and the Secretary conducted a hearing at which various representatives and ex perts appeared on behalf of interested parties. On the basis of these recom mendations and a formidable record of documents and oral testimony, including highly technical statements by expert witnesses, the Secretary established the standards in question.9 His statement of reasons covers some four and one-half pages of the Federal Register.10 * Petitioners allege no procedural errors in the promulgation of these standards, but they characterize them as in adequate to protect the health of em ployees as required by the Act. They attack the Secretary's interpretation of OSHA in certain particulars, as well as the enforcement measures he has selected. II OSHA is a self-contained statute in the sense that it does not depend upon reference to the Administrative Pro cedure Act for specification of the pro- Q 7A Qualified hearing examiner presided over the four days consumed by the public hearing. At the close his only function was to certify the record to the Secretary, which consisted of the written statements and commerits on the proposed standards received prior to the hearing in response to the notice of rulemaking, the transcript of the hearing itself, and many exhibits received during the hearing and In a further period allowed after the hearing for this purpose. The Joint Appen dix filed in this court contains oyer MOO pages, of which over 400 are from the hearing transcript. The testimonial pattern generally was for the witnesses to read long statements, at the dose of which they were subject to cross-examination. The questions actually asked tended to be few, sporadic, and per functory, and the record resembles nothing so much as that of a typical legislative committee hearing. J-?The statutory direction is that the Secre tary, whenever he promulgates a. standard, "shall include a statement of reasons for such action ..." 29 U.S.C. Sec. 655(e). The Secre tary has by regulation, 29 C.F.R. Sec. 1911.13(b); as amended, 37 F.R. 86S5 (1972), denned this task in these terms; Any rule or standard adopted ... shall incorporate a concise general statement of its basis and purpose. The statement is not required to include specific and detailed findings and conclusions of the kind cus tomarily associated with formal proceed ings. However, the statement will snow the significant issues which have been faced, and will articulate the rationale for their solution^ Petitioners have not challenged the pro priety of this formulation. Industrial Union Department, AFL-CIO Hodgson 1 OSHC 1635 ccdures to be followed. It prescribes that the process of promulgating a stan dard is to be initiated by the publication of a proposed rule. Interested persons are given a period of 20 days thereafter within which to submit written data or comments. Within this period any inter ested person may submit written objec tions, and may request a public hearing thereon. In such event, the Secretary shall publish a notice specifying the particular standard involved and stating the time and place of the hearing. Within 60 days after the completion of such hearing, the Secretary shall make his decision. Judicial review by the courts of appeals is provided.*1 This procedure is characteristic of the informal rulemaking contemplated by Section 4 of the APA, 5 U.S.C. Sec. 553, and it was so understood by the Congress. By regulation, however, the Secretary, although describing it as "legislative in type," has provided that the oral hearing called for in the statute shall contain some elements normally associated with the adjudicatory or formal rulemaking model. As indicated in the text of the regulations, set forth in the margin,12 the Secretary appar- * *29 U.S.C. Sec. 655(f) reads in relevant part; "The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record as a whole." 1JIn 29 C.F.R. Sec. 1911.15 ("Nature of Hearing"), the Secretary slated in relevant part: "(a)(2) `Section 6(b)(3) provides an opportunity for a hearing on objections to proposed rule making, and section 6(f) provides in connection with the judicial review of standards, that determinations of the Secretary shall be conclusive if sup ported by substantial evidence in the record as a whole. Although these sections are not read as requiring a rule making proceeding within the meaning of the last sentence of 5 U.S.C. 553(c) requiring the application of the formal requirements of 5 U.S.C. 556 and 557, they do suggest a Congressional expectation that the rule making would be on the basis of a record to which a substantial evidence test, where pertinent, may be applied In the event an informal hearing is held. "(3) The oral hearing shall be legislative in type. However, fairness may require an opportunity for cross-examination on crucial issues. The presiding officer Is em powered to permit cross-examination under such circumstance's.... "(b) Although any hearing shall be informal and legislative in type, this part is intended to provide more than the bare essentials of informal rule making under S U.S.C. 553. The additional requirements are the following: "(1) The presiding officer ahall be a ently concluded that this was necessary because of the necessity of having a record to which the statutorily man dated substantial evidence test could be meaningfully applied by a reviewing court. The only controversy we have in this case as to the procedural require ments of the statute is not with respect to the manner in which the rulemaking was done by the Secretary, but as to the reach of the substantial evidence test in the course of judicial review. The substantial evidence test has cus tomarily been directed to adjudicatory proceedings or formal rulemaking.13 The hybrid nature of OSHA in this respect can be explained historically, if not logically, as a legislative com promise. The Conference Report reflects that the Senate bill called for informal rulemaking, but the House version specified formal rulemaking and substan tial evidence review. The House receded on the procedure for promulgating stan dards, but the substantial evidence stan dard of review was adopted.14 * * One question generated by this anomalous combination is whether the determinations in question here are of the kind to which substantial evidence review can appropriately be applied. The Government in its argument suggested that a proper accommodation could be effected by construing the statute to require substantial evidence review of hearing examiner appointed under S U.S.C. 3105. "(2) The presiding officer shall provide an opportunity for cross-examination on crucial issues. "(3) The hearing shall be reported verbatim, and a transcript shall be available to any interested person on such terms as tha presiding officer may provide." 13See Camp v. Pitts, *11 U.S. 138 (1973); City Of Chicago v. FPC, .58 F.24 731, 744 (D.C. Cir. 1971), cert, denied, 405 U.S. 1074 (1972); Automotive Parts and Accessories Ass'n. v. Boyd, 407 F.2d 330, 334-38 (D.C. Cir. 2968); Wirt* v. Baldor Electric Co., 337 F.2d 518, 525-28 (D.C. Cir. 1963). 14. This combination is made even more confusing by a statement In the report that seems to indicate that the Conference Com mittee thought the substantial evidence stan dard was less exacting that the standard of rationality ordinarily applicable to the results of informal rulemaking. H. Rep. No. 91-1765 (1970), p. 36. For a more detailed discussion of these legislative events, see Associated Industries, p. 2 supra, where the Second Circuit said that the Congressional intention was clear "to adopt the substantial evidence test for review as a trade-off for the House's abandoning its insistence on rulemaking on the record ..437 F.2d at 349 (l OS11C at 1344). 1 OSHC 1636 Industrial Union Department, AFL-CIO v. Hodgson factual determinations, while weighing the inferences of policy drawn from those facts in terms of their freedom from arbitrariness or irrationality. We do not believe this approach would affect the rigorousness of our review to the extent the Government seems to sup pose, or that petitioners purport to fear.ls The analysis may, however, be useful for the purpose of clarifying the diverse nature of the judicial task im posed upon us by a statute like OSHA.16 Another problem arising from sub stantial evidence review of informal pro ceedings concerns the adequacy of the record to permit meaningful per formance of the required review. Al though this issue has not been directly raised in argument, it underlies much of the controversy concerning the suffi ciency of the evidence to support various specific determinations of the Secretary. Thus some explication of the procedural implications of the prescribed 5The Government's theory In this resard was nrejstd upon ths Second Circuit in Associated Industries, p. 2. supra, at 347-50. Judge Friendly, speaking for the court, felt obliged by reference to the face of the Act to reject it, at leatt as an abstract proposition. He also appears to have been impelled to this conclusion in some degree by what he con* sidered to be the Secretary's own concession In his regulations (note 12, supra) of "a Congressional expectation that the rule mak ing would be on the basis of a record to which a substantial evidence test, where per* tinent, may be applied in the event an Informal hearing is held," although his point in this respect seems weakened by the qualify* ing phrase, "where pertinent." He concluded however, that very possibly '`the controversy is semantic in some degree, at least in the context of Informal rulemaking" and lacks "the dispositional importance" claimed far it by the Government. J 6Although formulated in the context of adjudication, the comments by Judge Leventhal on how a reviewing court should go about the discharge of its responsibilities m the court-agency partnership in furtherance of the public interest are Helpful here. See Greater boston Television Cotp. v. FCC, 444 F.2Ci 841, 850-53 (D.C. Cir. 1970), cert, denied, 403 u.S. 923 (1971). in a paper presented to the 1974 Judicial Conference of this Circuit, to be published in due course as part of the proceedings. Pro fessor Roy Schotland, of the Georgetown University Law Center, hue emphasized the decree to which the success of the partnership turns on dear thinking about the scope of the review to be afforded by the judicial member. Professor Scliotiand's useful perceptions are many, hut none mo/e so than his reminder that the concept of scope of review defies generalized application, and demands. Instead, dose attention to the nature of the particular problem faced by the agency. substantial evidence standard of review should help to clarify our resolution of the particular substantive issues pre- sented by this petition. Faced with the fact that his deter minations were commanded by Congress to be reviewed under a substantial evi dence standard, the Secretary did volun tarily move his procedures significantly towards the formal model. He directed that (1) a qualified hearing examiner should preside over the oral hearing, (2) cross-examination should be permitted, and (3) a verbatim transcript made. The total record in this case was in part created under the conditions that obtain in a formal proceeding. In substantial remaining part, however, it consists of a melange of written statements, tetters, reports, and similar materials received outside the bounds of the oral hearing and untested by anything approaching the adversary process. Thus, in some degree the record approaches the form of one customarily conceived of as appropriate for substan tial evidence review. In other respects, it does not. On a record of this mixed nature, when the facts underlying the Secretary's determinations are sus- ceptible of being found in the usual sense, that must be done, and the reviewing court will weigh them by the substantial evidence standard. But, in a statute like OSHA where the decision making vested in the Secretary is legisla tive in character, there are areas where explicit factual findings are not possible, and the act of decision is essentially a prediction based upon pure legislative judgment, as when a Congressman decides to vote for or against a par ticular bill. OSHA sets forth general policy ob jectives and establishes the basic proce dural framesvork for the promulgation of standards, but the formulation of speci fic substantive provisions is left largely to the Secretary.517 The Secretary's task thus contains "elements of both a legis lative policy determination and an ad judicative resolution of disputed facts." Mobil Oil Corp. v. FPC, 483 F.2d 1238, 1257 (D.C. Cir. 1973). Although in practice these elements may so inter twine as to be virtually inseparable, they are conceptually distinct and can only 17 For a comparison of this aspect of OSHA with the National Labor Relations Act, which defines specifically prohibited practices, see Cohen, supra note 1, at 798-800. r f \ (j AP00000812 Industrial Union Department, AFL-CIO v. Hodgson 1 OSHC 1637 be regarded as such by a reviewing court. From extensive and often conflicting evidence, the Secretary in this case made numerous factual determinations. With respect to some of those questions, the evidence was such that the task consisted primarily of evaluating the data and drawing conclusions from it. The court can review that data in the record and determine whether it reflects substantial support for the Secretary's findings. But some of the questions involved in the promulgation of these standards are on the frontiers of scien tific knowledge, and consequently as to them insufficient data is presently avail able to make a fully informed factual determination. Decision making must in that circumstance depend to a greater extent upon policy judgments and less upon purely factual analysis.18 Thus, in addition to currently unresolved factual issues, the formulation of standards in volves choices that by their nature re quire basic policy determinations rather than resolution of factual controversies. Judicial review of inherently legislative decisions of this sort is obviously an undertaking of different dimensions.19 For example, in this case the evi dence indicated that reliable data is not . currently available with respect to the ! precisely predictable health effects of I various levels of exposure to asbestos 1 dust; nevertheless, the Secretary was j obligated to establish some specific level | as the maximum permissible exposure. After considering all the conflicting evidence, the Secretary explained his I decision to adopt, over strong employer objection, a relatively low limit in terms of the severe health consequences which could result from over-exposure. Inasmuch as the protection of the health of employees is the overriding concern of OSHA, this choice is doubtless sound, but it rests in lh8 final analysis on an essentially legislative policy judgment, rather than a factual determination, con cerning the relative risks of underprotec tion as compared to overprotection.* I 18 vVhere existing methodology or research in s new area of regulation is deficient, the agency necessarily enjoys broad discretion to jttcmpr to formulate u solution to the best of its ability on the busts of available informa tion. Permian Basin Area Kate Case, 390 U.S. 747, 811 (19*3). I 9see Automotive Parts and Accessories Ass'n v. Boyd, 407 I'.Jd 330, 336 (D.C.Cir. 1961?): Dody & Tank Corp. v. NLRB. 339 f .2d 76, 78-79 (2d C.'ir. 1964). Regardless of the manner in which the task of judicial review is articulated, policy choices of this sort are not susceptible to the same type' of verifica tion or refutation by reference to the record as are some factual questions. Consequently, the court's approach must necessarily be different no matter how the standards of review are labeled. That does not mean that such decisions escape exacting scrutiny, for, as this court has stated in a similar context: This exercise need be no less searching and strict in its weighing of whether the agency has performed in accordance with the Congressional purposes, but, because it is addressed to different materials, it Inevitably varies from the adjudicatory model. The paramount objective is to see whether the agency, given an essen tially legislative task to perform, has carried it out in a manner calculated to negate the dangers of arbitrariness and irrationality in the formulation of rules for general application in the future. Automotive Parts & Accessories Associa tion v. Boyd, 407 F.2d 330, 338 (1968). We do not understand Congress to have in this instance nullified this ap proach for all purposes by directing substantial evidence review. As noted above, that provision is important as an Indication of how we should approach certain kinds of questions and what kind of record we should demand of the Secretary. But it is surely not to be taken as a direction by Congress that we treat the Secretary's decision making under OSHA as something different from what it is, namely, the exercise of delegated power to make within certain limits decisions that Congress normally makes itself, and by processes, as the courts have long recognized and ac cepted, peculiar to itself. A due respect for the boundaries between the legisla tive and the judicial function dictates that we approach our reviewing task with, a flexibility informed and shaped by sensitivity to the diverse origins of the determinations that enter into a legislative judgment. [i] What we are entitled to at all events is a careful identification by the Secretary, when his proposed standards are challenged, of the reasnas. whv he chooses to follow one course rnther than another. Where that choice purports to berated on the existence of certain I OSHC 1638 Industrial Union Department, AFL-CIO r. Hodgson determinable facts, the Secretary must, in form as well as substance, find those facts from evidence in the record. By the same token, when the Secretary is obligated to make policy judgments where no factual certainties exist or where facts alone do not provide the answer, he should so state and go on to identify the considerations he found persuasive. Judge Friendly concluded his rumina tions in Associated Industries with an expression of doubt as to "whether judicial review of legislative standards resulting from informal rule-making will ultimately prove to be feasible."2^ That is certainly a serious and substantial question. Whether it can eventually be answered affirmatively must depend in large measure upon the care and good sense with which both the delegatee of what is essentially legislative power and the reviewing court go about their respective duties. In the case of OSHA, the Secretary has wisely acted by regula tion to go beyond the minimum require ments of the statute and to expand his capacity to find facts by providing an evidentiary hearing in which crossexamination is available. We think it qually the part of wisdom and restraint on our part to show a comparable flexibility, and to be always mindful that at least some legislative judgments cannot be anchored securely and solely in demonstrable fact. Such a principle, far from being destructive of the Con gressional purpose to provide judicial review, seems to us within the Congres sional contemplation as essential to its preservation. Ill Before addressing the specific chal lenges made to the Secretary's action, we examine two further problems raised by petitioners involving statutory con struction. One has to do with the weight to be accorded by the Secretary to the NIOSH recommendations. The other 20After noting the twin danger* that the courts may do both too much and too little in this elusive area, Judge Friendly observes that there Is much to be said "for the wisdom of Mr. Justice Brandeis in Pacific States Box & Basket Co, v. White, 296 U.S, 176, 186 (1935), that `where the regulation is within the scope of authority legally detected, the presumption of the existence of facts justify* in; its specific exercise attaches alike to statutes, to municipal ordinances, end to orders of administrative bodies.' " 487 F.2d at 354 [ 1 05 HC at 1348|, relates to whether the Secretary may take economic considerations into account. . With respect to the former, the statute directs NIOSH to develop criteria document-That describe safe levels of expssurs;--sira--tire--secmrny--B^Ta promulgate standards that insure t-hgf employees are protectedTpfher-lgiiguaRa empioyW by Congress In these two mandates is essentially identical except that the Secretary must consider ele ments ' of feasi5ilil2..22I From Ibis similarity petitioners argue that the determinations of NIOSH are meant to be conclusive on the question of what exposure levels adequately protect health, and that the Secretary may deviate from the NIOSH document only to the extent dictated by feasibility. The Act merely says that the Direc tor of NIOSH shall immediately forward recommended standards to the Secretary without specifying how the Secretary is to use them, but the procedure pro scribed for the formulation of standards militates against petitioners' position. It is the Secretary rather than NIOSH who conduct* &he*arings and receives the com ments of interested persons. The Secre- tary may also appoint a special advisory committee to assist him in his standard- setting functions, and receive recom mendations from it, as he did here. [2] The Act, or so it seems to us, must be taken as contemplating that the Secretary may consider all of this in formation as well as that received from NIOSH. Petitioners' argument would restrict the advisory committees and interested parties to comments relating solely to feasibility, a role petitioners , i " // \\ ^Compare 19 U.S.C. See. . . [NIOSH| shall develop criteria dealing with toxic materials and harmful physical agents and substances which will describe exposure levels that are safe for various periods of employment, including but not limited to exposure levels at which no employee will suffer impaired health or functional capacities or diminished life expectancy as a result of his work ex perience. * '^trl'Fti'r'flt^ri^lr^u^ating standards dealing with toxic materials or harmful physical agent* under this subsection, shall set the standard which most adequately ] assures, to the extent feasible, on the basis 1 of the best available evidence, that no employee will suffer material impairment ; of health or functional capacity even if f such employee ho* regular exposure to the* U hazard dealt with by the standard for Che period of his working life. ... (Emphasis supplied.) * AP00000814 Industrial Union Department, AFL-CIO v. Hodgson 1 OSHC 1639 themselves clearly--and, we think, legiti mately-exceeded. at the hearing and in their arguments before this court. The N10SH recommendation was un doubtedly important in the eyes of Congress as an aid to the Secretary, but we cannot see that it was intended as more than that. In connection with the second issue, we note that the statutory authority for the promulgation of standards reads in relevant part: The Secretary ... shall set the stan dard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impair ment of health or functional capa city____ 29 U.S.C. Sec. 655(b)(5) emphasis supplied). 3] The standards as promulgated retain the concentration level specified by the temporary emergency standard until 1976 when a lower permanent standard becomes effective. The Secre tary explained his decision to delay, two years longer than the period suggested by NIOSH, implementation of the tougher standard as "necessary to allow employers to make the needed changes for coming into compliance," and peti tioners argue that the Secretary im properly considered economic factors in reaching this conclusion. We conclude that the factors entering into the Secretary's conclusion could -properly mcTiiJe problems'oTeconontic feasibility. ' There can be "no question that OSHA represents a decision to require safe guards for the health of employees even if such measures substantially increase production costs. This is not, however, the same thing as sayi'rTg_thJt' CorigrSss intended to require im'mSdiatdTifipI?nieriiatidn'' of all protective"nrerasur#s technologically achievable withoutl^Sgard for their economic impact!'To the contraryyit would-comport with com mon usage to say that a standard that is prohibitively expensive is not "feasi ble."22 Senator Javits, author of the 22A discussion of Some of the cost* of dust control is found in Hills, Economics of Dust Control, 132 Annals of the New York Academy of Sciences. 322 (1965), App. at 442 -54, Several industry representatives testi fied in detail concerning the cost of attempt ing to meet the standards. Cf. H & H Tire Co. v. United States Dept, of Transportation, 471 F.2d 350 (7th Clr. 1972); Chrysler Corpora tion v. Department of Transportation, 472 F.2d 659 (6th Cir. 1972). These cases support the proposition that `-practical" as employed amendment that added the phrase in question to the Act, explained it in these terms: As a result of this amendment the Secretary, in setting standards, is ex pressly required to consider feasibility of proposed standards. This is an improvement over the Daniels bill, which might be interpreted to require absolute hoalth and safety in all cases, regardless of feasibility, and the Administration bill, which contains no criteria for standards at all. S. Rep. No. 91-1282, 91st Cong., 2d Sess., p. 58; Legis. Hist, at 157. The thrust of these remarks would seem to be that practical considerations can temper protective requirements. Congrss,.doei_noi_ appear to. have. Intended to protect employees, by. putting, their erqpioyers out of business-either by requiring ' protective devices unavailable under existing technology or by making financial viability generally impossible* This qualification is nofintended to provide a route by wliich recalcitrant employers or industries may avoid the reforms contemplated by the Act. Stan dards may be economically feasible even though, from the standpoint of em ployer, they are financially burdensome and affect profit margins adversely. Nor does the concept of economic feasibility necessarily guarantee the continued existence of individual employers. It would appear to be consistent with the purposes of the Act to envisage the economic demise of an employer who has lagged behind the rest of the indus try in protecting the health and safety of employees and is consequently finan cially unable to comply with new stan dards as quickly as other employers.23 As the effect becomes more widespread within an industry, the problem of economic feasibility becomes more pressing. For example, if the standard requires changes that only a few leading firms could quickly achieve, delay might be necessary to avoid increasing the concentration of that industry. Similar ly, if the competitive structure or posture of the industry would be other wise adversely affected--perhaps in the Automobile Safety Act of 1966, IS U.S.C. Sec. 1392(a), includes economic con siderations, but the legislative history of that statute, unlike the history of OSHA, is more explicit on that point. 23 Temporary variances may be obtained when timely compliance is technologically impossible. 1 OSHC 1640 Industrial Union Department, AFL-CIO v. Hodgson rendirod unable to compete with im ports or with substitute produets14-the Secretary could properly consider that factor. These tentative examples are of fered not to illustrate concrete instances of economic unfeasibility but rather to suggest the complex elements that may be relevant to such a determination.25 With the aid of the foregoing analytic background of the procedural and sub stantive provisions of the Act, we turn to the specific objections raised by petitioners to the standards. 1. Effective Date for the Two Fiber Standard. The most important aspect of setting the standards was the determination of an acceptable dust concentration level. Under the emergency standards, the eight hour time-weighted average air borne concentration of asbestos dust had been limited to five fibers greater than five microns in length per milliliter of air (hereinafter "the five fiber stan dard"). 36 F.R. 23207, 23208.26 A principal issue at the hearings on the Permanent standards was whether the ndard should remain at five fibers or lowered to two. Proponents of stan dards ranging from zero to 12 fibers l 24 Testimony of industry representatives predicted both of these results. See, e.F., App. at V60-62. * 2*Since technological progress is here linked to objectives other than the traditional competitive, profit^oriented concerns of Indus try. accommodation of both sets of values will sometimes involve novel economic problems. International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.Cir. 1973), illustrates some of th*se problems in the context of the automobile emissions standards of the Clean Air Act, 42 U.S.C. Secs. 1857 et seq. In the highly concentrated automobile industry the court deemed it likely that, by virtue of their sue and importance to the economy, any one of the three major companies could obtain a relaxation of the automobile emissions stan dards if it could not meet them. If this occurred nfter other manufacturers had pre pared ro comply with the standard, the technological lagvard would enjoy a competi tive advantage because installation of the control devices renders the vehicles less effi cient to operate. This circumstance Justified insuring that the standards could be met by all major producers before they became effec tive. 26 Although size and shape of fibers are relevant to this propensity to cause harm, the court Is limited to fibers longer than five microns for practical rather than medical reasons. The most accurate sampling technique that can feasibly be employed, the membrane filter method, docs not measure smaller par ticle*. \f:p. at 143-203, 225*227, 929, 939-42. appeared, and it is fair to say that the evidence did not establish any one posi tion as clearly correct. The Secretary decided to resolve this doubt in favor of greater protection of the health of em ployees, and established the two fiber standard recommended by NIOSH and his Advisory Committee as the level ultimately to be achieved. Industry representatives testified that they simply could not reduce concentra tions to the two fiber level in the forseeable future. In the course of for mulating its proposal, NIOSH had under' taken a limited analysis of industry's capacity to comply and had recom mended delaying the effective date of the two-fiber standard for two years' te., July 1, 1974. The Secretary decided to retain the five fiber standard for approximately four years (July I, 1976) before requiring the reduction to two fibers, in order to give employers time to prepare for the lower limit. Peti tioners assert that the four year delay permitted by the Secretary is too long because (1) the health of employees is endangered thereby, and (2) employers do not need that much time. a. Health Hazards Occasioned by the Delay. The Secretary solicited the views of several experts on the question of the predictable health effects of maintaining a five fiber standard until 1976. The experts differed sharply in some of their opinions, but their responses are gener ally cautious and reflect deficiencies in available data concerning the relation ship between exposure to asbestos dust and the likelihood of disease. The record indicates that no precise prediction of increased harm can be made at this time.21 0**7 The Secretary directed his inquiries to Marcus M. Key, M.D., Assistant Surgeon General, Director of NIOSH; GeorgO W. Wripht, M.D., Head of the Medical Research Division of St. Luke's Hospital, Cleveland, Ohio; W. Clark Cooper, M.D., Professor in Residence, University of California at Berkeley; and Duncan A Holaday, Research Professor, Mount Sinai School of Medicine, City University of New York. Their replies are found in the Supplemental Joint Appendix. As examples of the responses. Dr. Key anti cipated some increase In the effects of as bestoses, but not of significant proportions. Supp. App. 3b. With regard to potential carcinogenic effects, he said data was insuffi cient to make a prediction but that safety required proceeding on the assumption that exposure should be minimized. Dr. Wright replied that there is no evidence whatsoever to Industrial Union Department, AFL-CIO v. Hodgson 1 OSHC 1641 [4] The Secretary must establish those standards that most adequately insure that no employee will suffer material impairment of health. We can not say, on. the basis of the conflicting testimony in the record, that the Secre tary erred in his prediction of the health effect of the four year delay,*281 2b3u4t neither can we say that employees are not exposed to some additional risk of disease because of greater exposure. In view of the Act's express allowance for problems of feasibility, the Secretary's decision to allow a four year delay is not irrational with regard to those indus tries that require-that long to meet the standard. It is appropriate to allow sufficient time to permit an orderly industry-wide transition since, in those cases, the indeterminate degree of risk involved is counterbalanced by con siderations of feasibility; it is not, how ever, a risk to which employees should be needlessly exposed. b. Industrial Compliance Capability The evidence indicates that significant inter-industry, as well as intra-industry, differences exist concerning the time needed by employers to meet a two fiber standard. Within particular indus tries the concentration levels at some plants, usually newer ones, are much lower than at others. Supp. App. 12b. More importantly, some industries could implement a two fiber standard more quickly than others.29 The Director of indicate that asbestos per se is a carcinogen in the sense of being an initiator, Supp. App. 15b| and that it is currently unknown whether a reduction of concentrations below the five fiber level is biologically important. Supp. App. 14b. On the other hand, Dr. Koladay Indicated that he did not see how a level higher than two fibers could be justified Supp. App. 43b. 28The Secretary concluded that "so long as the celling limit Is complied with, no harm is reasonably expected to result from ex posures during the transitional period.'* This Judgment, although not compelled by the evidence. Finds support in the record. 29 On the question of feasibility in par ticular industries, the statements of the ex perts listed in note 27 supra may be sum marized as follows: 1. insulation application--within two years (Wright, Cooper and Holiday); 2. murine insulation-within two years Holaday); more than two years Cooper); 3. asbestos textiles-more than two years (Wright and Hobday); 4. asbestos cement plantsand friction products plan ts-almost immediately (Holaday). NIOSH recommended that the Secretary require compliance sooner than 1976 where possible, and that he prohibit degradation of workplaces with concen trations currently below the limits. Despite this recommendation and the evidence of these differences, the Secre tary issued a single uniform effective date for all employers in all industries. He explained this decision as follows: It is concluded there should be one minimum standard of exposure to asbestos applicable to all work places exposed to any kind of mix ture of kinds of asbestos. Reasons of practical administration preclude a variety of standards for different kinds of asbestos and of workplaces. We cannot say on this record that an attempt to assign differing effective dates to employers within an industry based on the time needed by each employer to alter his plant would be practicable. However, insofar as inter industry differences are concerned, those reasons of practical administration are neither explained nor readily ap parent.30 * * Government counsel suggested at oral argument that the Secretary possessed insufficient information at the time of formulation of the standards to differen tiate among industries. That may be true, but it is unclear whether the lack of information is a cause or result of the Secretary's approach. When the Secre tary sought opinions concerning com pliance capabilities, the responses sug gested that some industries could comply almost immediately, some could comply within two years, and some might require longer. The lack of more specific information may be partially attributable to the Secretary's failure to seek it. The record reflects little, if any, effort to cross-examine industry wit nesses on this point, and, notwithstand ing their insistence that a two fiber standard was not practicable, such ques- Dr. Key, the Director of NIOSH, did not respond in terms of particular industries, but he did say that some plants could reach a two fiber standard before 1976, and that they should be required to do so. By listing these responses wc do not mean to surest any opinion as to the accuracy of these predictions. The record at present con tains little data from which to draw such a conclusion. 30 Similarly, problems of competitive ad vantage, relevant to intra-industry standards, are ordinarily Inoperative at the inter-industry level. Cf. international Harvester Co. v. Kuckv'lshuus, note 25 supra. 1 OSHC 1642 Industrial Union Department, AFL-CIO v. Hodgson tioning might have elicited some infor- dust are within the allowable limits; ' mation pertinent to inter-industry dis thereafter, monitoring must in all cases / tinctions.31 be of such pattern and frequency as to \ Separate standards for different in identify accurately tho levels of ex dustries would not appear to create posure. Monitoring must occur no less opportunities for employers in one in frequently than once every six months dustry to challenge their standards on where the concentrations may reason the grounds that standards for another ably be foreseen to exceed the stan industry were less demanding. The only dards. Petitioners object that these pro relevant question would be whether the visions are inadequate to protect the time schedule established for each indus health of employees.33 try was feasible for that industry; there The monitoring provisions axe fore, comparisons with the standards especially important because the results . established for a different industry with of that process often determine when ^ different technological problems would and what protective measures are re be pointless unless the two industries quired.34 35Petitioners argue that the were in competition with one reasonable foreseeability qualification another.32 If one industry could gain a vests control of this key provision in the competitive advantage over another by discretion of the employer. They suggest virtue of differing standards, employers that an employer may evade the in the disadvantaged industry might controls imposed by the standards challenge the standards on a comparative simply by deciding that no violations basis, but the threat of problems of that can reasonably be foreseen at his plant, type does not appear on the basis of the thereby exempting his business from the record before us to justify a uniform requirement that monitoring be con standard for all industries. ducted once every six months. Although (5] It may be that the task of it is true that the standards require the devising categories and classifying em- employer to exercise some judgment lyers by industry would be unmanage- concerning the likelihood of a violation, ie in view of the many diverse uses of we do not give the foreseeability /' asbestos. However, there is no evidence exception the broad construction feared \ to that effect in the record, and it is not by petitioners. for the court to guess at the Secretary's Periodic monitoring is important to reasoning or to supply justifications for insure that concentration levels have not his action. We have noted his cryptic been allowed to increase since the initial reference to "reasons of practical ad monitoring. Further, monitoring tech ministration," but, insofar as inter niques may not be entirely uniform,3* industry distinctions are concerned, and, in any event, concentrations of those reasons are not self-evident. There asbestos in the air may not remain fore, we remand this aspect of the stable throughout a working day or standards to the Secretary for clarifica from one day to the next. Thus whether tion or reconsideration. or not the initial monitoring reflects a violation will be the product of several 2. Monitoring Requirements. variables other than the actual average Within six months of publication of the standards, all employers are required to monitor workplaces to determine whether the concentrations of asbestos concentration of asbestos dust in that plant. In light of these factors, satisfac tory results in the initial monitoring would not necessarily justify a conclu sion that concentrations in excess of the / 31 It is possible that the Secretary failed to yftursue {hij point because he interpreted the f statute to require t single uniJofm'Tfaridard fof'rc&SdftS 6f practical gJTTTfrrlstratlbn. If s5T" -- we disagree.-The statutory scheme is centrally limits could not be foreseen. It might well require several samples demon strating consistently low exposure levels before such a prediction could be made calculated'HT give the Secretary broad respon sibility for determining when standards are requireJ and what those standards should be. If the Secretary determines that meaningful distinctions between the compliance capa bilities of various industries can be defined, he is authorized to structure the standards ac cordingly. 32 Portland Cement Association v. Ruckel- shaus, 486 F.2d 375, 389-90 (D.C. Cir. 1973). 3329 U.S.C. Sec. 6SS(B)<7) requires that the standards where appropriate shall provide for monitoring or measuring employee exposure at such locations ana intervals, and in such manner as may be necessary for the protection of employees. 34Sce, e.g., 29 C.F.R. 1910.93a (c), (f)(1). 35See, e.g., App. at 356-60. I * AP00000818 Industrial Union Department, AFL-CIO v. Hodgson 1 OSHC 1643 with any confidence. Thus we consider the qualification based on reasonable foreseeability to be a narrow one ap plicable only when considerable informa tion regarding the workplace is available. Even then occasional monitoring would be required in order to insure that no changes had occurred, but the six montlis schedule would not apply. Some jobs pose particularly difficult monitoring problems, and petitioners argue that monitoring once every six months is inadequate to control such situations effectively.*3* That may be true, but the problem should be ade quately handled by the general require ment that monitoring be tailored to reflect exposure levels accurately. Where excessive exposure may reasonably be foreseen, monitoring is required at least once every six months and more frequently where appropriate. Petitioners seem to fear that, because of the imprecise language of this require ment, the six month maximum interval between monitoring samples will in practice become the minimum as well, and they consider that inappropriate. The imprecision is perhaps unavoidable, however, in view of the multitude of diverse industrial situations involved. The most effective manner in which to deal with problems of this sort would appear to be to invoke the procedures for detecting and correcting violations in particular workplaces.37 In the context of a claim concerning a specific situa tion, it would be possible to develop a record on the question of the adequacy of the monitoring interval for that par ticular workplace-a record necessarily absent in the context of these proceed ings to establish a general guideline. C. Methods of ComplianceScope of Applicability. The Act specifies particular methods of compliance that must be employed in order to meet concentration levels, but Thg^sran dsrds racxqmizc these problems and^otTcmpt to deal witn~j>*ut of them by ,t*fablishinz limits for peak periods; (3) Ceiling concentration. No\ employee sFlatt--rw..Y.poti.i at my airborne ----concentrations of asbestos fibers in excess of 10 fibers, longer than 5 micrometers, per cubic centimeter of air. ... 29 C.F.R. Sec. 1910.93(b)(3). ^Employees may report to the Secretary conditions that they believe to be In violation of the standards, and request an inspection. 29 U.S.C. Sec. 657(f)(1). Coupled with the sanctions available for violations, these pro- there is some ambiguity as to the sit uations in which those provisions are operative. Part of this uncertainty stems from the following sentence quoted from the initial monitoring requirement: If the limits are exceeded, the em ployer will immediately undertake a compliance program in accordance with paragraph (c) of this section. 29 C.F.R. 1910.93a (0(1). Petitioners fear, and the Government brief seems to suggest, that this language restricts applicability of the provisions concerning methods of compliance to those situations in which the initial monitoring reflected a violation. Those provisions are not by their terms so restricted, nor does an examination of this language suggest that they were meant to be. They state broadly, for example, that engineering controls "shall be used to meet the exposure limits ...." The provision dealing with partic ular tools states: All hand-operated and power-op erated tools which may produce or release asbestos fibers in excess of the exposure limits prescribed in para graph (b) of this section . . . shall be provided with local exhaust ventila tion systems .... 29 C.F.R. 1910.93a(c)(l)(iii) (emphasis sup plied). The modifying clause italicized above would hardly seem necessary if this provision applied only to those work places where a violation has already been detected.38 Finally, the work prac tices provisions are concerned with activ ities that may create high concentrations of asbestos for short periods of timesituations that can be identified as dan gerous without resort to monitoring and as to which monitoring is least effec tive.39 Specific control measures can be used not only to correct violations that have been discovered but also as a supplo- visions are designed to deter employers from ignoring their responsibilities. ^Petitioners attack this language as un duly imprecise, but that argument is governed by the same reasoning as the "reasonable foreseeability" modification of the monitoring requirement. The exception is a narrow onelimited to workplaces that present no serious! / question of compliance. It is noteworthy that \v the KPA speaks of this section as creating aj general duty to use local exhausts with no mention of the exception. 38 F.R. 8821 (Apr. 6, 1973) (Statement accompanying 40 C.F.R. Part 61). 39See, e.g., 29 C.F.R. 19I0.93a(c)(2)(ti). IOSHC 1644 Industrial Union Department, AFL-CIO v. Hodgson mcnt to the monitoring procedure. Whether monitoring detects imper missible concentrations of asbestos dust in a particular workplace may depend upon when and how the sample is taken. The danger that hazardous condi tions will consequently exist undetected and unremedied can be reduced by requiring that certain objective control measures be employed as well. Whereas monitoring requires skilled technicians, anyone, including a labor union repre sentative, could determine whether ex haust fans or wet handling methods were being employed.40 Since the rec ord indicates a shortage of monitoring personnel, this may prove to be one of the most important benefits of these provisions. [6] For these reasons, we do not construe the methods of compliance provisions as being applicable only in those instances in which a violation has already been detected. Although the terms of those provisions are often sufficiently broad to allow considerable flexibility in the choice of methods, `''ey are generally applicable to all work- ces covered by the asbestos standards. D. Use of Moisturization as a Control Method. The standards require that asbestos be moisturized before being handled and worked to avoid creating dust "unless the usefulness of the product would be diminished thereby.''41 Petitioners argue that this requirement should not be modified by considerations of utility. In considering this issue it is important to recall that this is a supplemental regula tion. The employer must comply with the concentration limits in any event; the issue is whether he must use this particular method. Moisturization is effective and is sub ject neither to the uncertainties of moni toring nor to the technical problems of malfunction and repairs incident to dust collection and exhaust systems. The Sec retary recognized these advantages and required that this method be employed where practicable, but left to the em ployer the opportunity to seek other methods in some circumstances. This solution seems to accommodate as near ly as possible the interests of safety and efficiency. Petitioners' objection is that *Src App. at 227-2B, 808 09. 4129 C.F.R. 1910.93a(c)(2)(i). flexibility is again achieved by relying on a judgment by the employer. Al though we can understand the concern on the part of labor representatives in a matter of this sort, it is too early in the history of this statute to presume that employers will not make a good faith effort to comply. Further, this aspect of the Secretary's standards is consistent with the general Congressional scheme. OSHA applies to an estimated four million employers and 57 million employees, but the Secretary has only about 600 inspectors and 100 industrial hygienists. In this situation some reliance on self-policing by em ployers is clearly necessary. Although this self-regulatory aspect of the statute would make specific, objective standards desirable, devising standards of this sort that will be generally applicable to thousands of different situations involves enormous practical difficulties. Setting forth inflexible requirements of particu lar methods would be effective only if the Secretary could anticipate all possi ble problems and devise a uniform ap proach appropriate to each. Rather than attempt to do so, the Secretary has in some instances employed a somewhat open-ended scheme to allow develop ment of different methods for different workplaces. As a safeguard against abuses by the employer, Congress has provided employees or their representa tives with numerous opportunities to participate in the policy process or to instigate enforcement by the Secre tary.42 43 3. Labels and Warnings. In order to insure that employees handle materials likely to produce as bestos dust carefully and to prevent persons from entering areas where they will be exposed to such dust needlessly, cautionary labels and warning signs are required by the Secretary's standards. Petitioners assert that the language se lected by the Secretary is not strong enough for these purposes, and they have suggested alternatives that they consider better suited to the task.42 42See, e.g,, 29 U.S.C. Secs. 655(b)(1), 656(a)(1), 6S7(c)(3),(u), (f)(1), 659(c). One commentator has described this opportunity for union participation as unparalleled In any other labor legislation. Cohen, supra noto i, at 799. 4-3The statutory mandate regarding labeling i.t as follows: Any standard promulgated under this Industrial Union Department, AFL-CIO v, Hodgson 1 OSHC 1645 Although the language favored by peti tioners was recommended by NIOSH and was included in the standards as originally proposed, we cannot say it is required by OSHA. After examination of the standards promulgated in light of the terms of the statute, we conclude that they are within the range of the Secretary's discretion. 4. Medical Examinations. The standards require that all em ployers provide a medical examination (1) when an employee is first assigned to a job involving exposure to asbestos, (2) when he leaves that job, and (3) annually during his employment in the position. Petitioners do not attack this timetable or the substantive require ments governing the nature of the examination, but they do assert that the examinations should be given by a physician of the employee's choice, and that the results should be given to the employer only if the employee decides to do so.44 subsection shall proscribe the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed.... 29 U.S.C. Sec. 655(b)(7). The caution signs required by the standards read: ASBESTOS DUST HAZARD Avoid Breathing Dust Wear Assigned Protective Equipment. Do Not Remain In Area Unless Your Work Requires It. Breathing Asbestos Dust May Be Hazardous To Your Health 29 C.F.R. Sec. 19l0.9Ja(g)(l)(u). The warning labels state*. Caution Contains Asbestos Fibers Avoid Breathing Dust Breathing Asbestos Dust May Cause Serious Bodily Harm 29 C.F.R. Sec. 1910,938(B)(2)(H). The language favored by intervenors would use the terms "Danger" and "warning" and would make specific mention of particular health hazards such as cancer and asbestosis. 44 Petitioners also urgue that the examina tion should be available to retired as well as to active employees. The statute requires that where appropriate the standards "prescribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at his cost, to employees exposed to hazards in order to must effective ly determine whether the health of such employees is adversely affected hy such ex posure." 29 U.S.C Sec. 655(b)(7). By its terms the protection nf this provision extends only to employees and would terminate with that status. Although that language might conceivably be read to include former employ- Petitioners argue that the standards violate the principle of physician/patient confidentiality because they would allow the physical examinations to be con ducted by company doctors and would make the results available to the em ployer. Confidentality is necessary, they argue, to avert the possibility that, in hiring and discharging employees, employers will discriminate against those with symptoms of asbestos-related disease or prior histories of exposure to asbestos dust. The Secretary recognized this potential problem, and stated that uses of the records would be scrutinized carefully. However, he did not consider the possibility of such abuse sufficient to outweigh the opposing considerations. The standards require the employer to take into consideration the result of an employee's most recent physical ex amination in making assignments to jobs requiring the use of respirators. An employee who cannot safely perform such a job is to be reassigned without loss of seniority or v/ages. The Secretary reasoned that the salutary purposes of this provision could not be fulfilled if employers were denied access to the medical records.45 * Since the results are to be made available to the employer, allowing the employer to select the physician has the advantages of both convenience and ef ficiency. Some employers already main tain an industrial medical staff skilled in dealing with asbestos-related medical problems,44 and the requirements of the standards as promulgated appear likely to encourage the development of addi tional staffs of this sort. The employee would then benefit from the expertise associated with specialization, and the state of medical knowledge concerning these diseases should likewise be im proved. All of these factors, identified in the record, operate to make the Secre tary's decision on this point a nonarbitrary one. ees If such t construction were necessary to effectuate the purposes of the Act, ive are not persuaded that the measures adopted by the Secretary have been shown to b inadequate by reference to the language of the statute. 45 The ultimate choice remains in the hands of the employees in any event since the examinations provided by the employer ate entirety voluntary insofar as employees are concerned. *6See App. 339-42, 569-70. 1 OSHC 1646 Industrial Union Department, AFL-CIO v. Hodgson 5. The Recordkeeping Requirements. Many of the problems the Secretary faced in establishing standards regarding asbestos dust were directly attributable to the lack of reliable information con cerning asbestos-related diseases. The Act attempts to correct this deficiency by requiring that: Each employer shall make, keep and preserve, and make available to the Secretary or the Secretary or Health, Education, and Welfare, such records regarding his activities relating to this chapter as the Secretary . . . may prescribe by regulation as neces sary or appropriate for the enforce ment of this chapter or for develop ing information regarding the causes and prevention of occupational acci dents and illnesses. 29 U.S.C. Sec. 657(c)(1). Under the standards promulgated by the Secretary to implement this provision of the statute, employers must retain for twenty years records of each employee's required medical examinations. The stan't.ards also require that employers keep ;cords of personal and environmental monitoring, but these records need only be kept for the most recent three years. Petitioners challenge both require ments as inadequate to protect the health of employees and to advance the present state of knowledge in this area. They argue that, in view of the long latency period associated with many asbestos-related diseases, all records, be ginning with initial exposure and con tinuing throughout the life of each employee, should be retained. Since the recordkeeping requirements for medical examinations and monitoring differ not only in retention period but also in purpose, we treat each separately and reach different conclusions with regard to the two standards. a. Medical Records Records of an employee's prior physical examinations may assist a physician in the detection, diagnosis and treatment of that employee's illnesses. Although completeness would be desirable, it may be that the most critical medical records are the most recent ones, perhaps reflecting the ex aminations of the past two to five years.47 Since Congress expressed the 47See the statement of Dr. Johnson at page 103 of the Official Report of Proceeding* before the U.S. Department of Labor desire to avoid unnecessary recordkeep ing and to impose the "minimum bur den upon employers," 29 U.S.C. Sec. 657(d),4 the Secretary's decision to require retention of only records from the most recent twenty years was per mitted him under the Act. Records of past medical examinations may also be useful in research; for example, they may facilitate the plotting of the longitudinal course of disease or the evaluation of the long-term effects of various levels of exposure to asbestos fibers. These purposes might require a longer retention period than would often be critical for treatment of par ticular patients; however, even for re search, records of some effects of ex posure are detectable in the examina tions.49 * T* hus, even though that often will not occur until several years after initial exposure, the Secretary could reasonably conclude that the records of twenty years would ordinarly encompass the period during which disease could be detected and studied. Further, we note that twenty years simply marks the minimum time which records must be maintained by employ ers. If retention is required for a longer period of time for purposes of research, the research organization can obtain copies of the records from the employer and keep them. The standards require an employer to supply these records to the Government upon request, and the twenty year period appears reasonably adequate for these purposes. This ar rangement seems most practical since the records of every employee may not be needed for research. Ordinarily, sampling techniques would be employed to select limited numbers of representa tive records. After research groups have had a reasonable opportunity to obtain the records, and once the other records have been digested in statistical sum maries, the remaining records arguably are of little utility. b. Records of Exposure Levels Detected by Monitoring. The three year retention period for the monitoring records seems sur Advisory Committee on Asbestos Dust Con ference, App. 219. 485ec also S. Rep. No. 91-1282, supra, at 16-17, Leals. Hist, at 1S6-S7. 49See Advisory Committee Proceedings, supra note 47, at 100-05, App. J. 216-21; App* at 273. Industrial Union Department, AFL-CIO v. Hodgson 1 OSHC 1647 prisingly short in comparison to the twenty years requirement for medical records--especially in view of their respective functions. Whereas the medical records of primary importance may be those beginning with the first manifestations of a disorder, a complete record of an employee's history of ex posure to asbestos prior to the develop ment of disease would be important to research. At this point in time, relatively little is known about the causal relation ship between exposure to asbestos dust and various diseases. Persons manifesting disorders are being studied, but that research is hindered by the lack of information concerning the exposure levels at industrial workplaces In the past. As the Secretary observed: [W)e have now evidence of the con sequences of exposure, but we do not have, in general, accurate measures of the levels of exposure occurring 20 or 30 years ago, which have given rise to these consequences. 37 F.R. 11318 so For this reason, in the proceedings be fore the Advisory Committee two mem bers of the committee suggested that a twenty year period for exposure records and a five year requirement for medical records would be appropriate,51 [7] The Secretary did not explain his decision to require only a three year retention period for exposure records, but the Government has suggested several justifications in its brief. Passing over the problem of considering a rationale advanced by counsel rather than by the Secretary, we have ex amined those arguments and conclude that they do not adequately clarify the Secretary's action. The Government notes that the Act specifies that citations for violations must be issued within six months of the occurrence of the violation. Thus it would appear that a period of three years is more than adequate for enforce ment purposes. This argument is accur ate, but it does not speak to the Secretary's obligation under OSHA to require retention of those records neces sary to develop information concerning the causes of disease. The second justification offered is that it is the responsibility of NIOSH, S0See also EPA Statement, supra note 38, at 8830. S,App. at 231. the Secretary, and HEW to collect the exposure data necessary to re-evaluate the standards. 29 U.S.C. Seps. 671, 673. Employers must supply records on request,52 and the Government asserts that three years is an adequate period of time to allow for the agencies to make such requests. A single permanent storage center for all these records might well be the best solution. Since employees may change jobs and employers may cease opera tions, continuity may be best achieved if the agency collects and retains the records.53 if such a program is in fact implemented, the three year period may be acceptable, but there is no indication that current agency procedure includes compilation of such records. Further, the following footnote from the Govern ment's brief raises some question con cerning the interpretation of the purposes of recordkeeping: 3 5These records are not relevant concerning individual records of exposure. Monitoring of employee ex posure is not continuously per formed, therefore, worklife exposure is never truly obtainable. Unless specific employees are linked with exposure data these records are not relevant for purposes of determining cumulative employee exposure. Be cause these records are not relevant to total employee exposure there is no need to transfer monitoring records if a company goes out of business. As noted above, data concerning prior exposure is considered very im portant in determining the causal rela tionship between exposure to asbestos dust and disease. To the extent that the note quoted above suggests that collection of such data is unnecessary, it reflects a misinterpretation of the Act. It may be that an adequate basis for research may be established on the basis of exposure levels generally prevalent in the industry without linking each employee to the particular samples taken from his workplace, but the pur poses of the recordkeeping requirements 52 Records shall be maintained for a period of at least 3 years and shall be made available upon request to the Assistant Secretary or Labor for Occupational Safety and Health, the Director or the National Institute for Occupational Safety and Health, and to authorized representatives of either. 29 C.F.R. I910.93affl(I). **See App. ot 2t6. 1 OSHC 1648 Brennan v. Southern Contractors Service and OSAHRC cannot be fulfilled without providing PETER J. BRENNAN, SECRETARY some adequate means of relating health OF LABOR, Petitioner, v. SOUTHERN records to exposure levels. CONTRACTORS SERVICE and OCCU The Secretary has provided no ex PATIONAL SAFETY AND HEALTH planation of the relatively short reten tion period for monitoring results, and we find no adequate assurance in the record that the requirement as promul gated will provide the data needed for research into the causes and prevention of asbestos related disease. Consequently, we remand the recordkeeping REVIEW COMMISSION, Respondents, No. 73-3682, April 12, 1974. Stephan F. Eilperin, U. S. Depart ment of uustice, Washington, D. C., for appellant.\ Allen N. Sachel, Special Counsel, OSAHRC, Washington, D. C., for appel lee. rrequirements to the Secretary for such Before GeVin, Coleman and Morgan, j modification or clarification as may be Circuit Judges.' . necessary to insure that the statutory j objectives will be fulfilled, SAFETY NETS v. Except for the remand we order for reexamination of (1) the uniform ap plication of the 1976 effective date for the two fiber standard and (2) the three year retention period for monitoring records, the petition for review is denied. All of the challenged features of the standards appear to partake of an essentially legislative type of decision 1. Interpretation of standard Requirement of 2P CFR 1926.105(a) that safety nets be provided where use of ladders, scaffolds,Vtch platforms, temporary floors, safet\ lines, or safety belts is impractical obligates employer to use either safety net or None of other safety devices listed in standard. making by the Secretary in the performance of the broad delegation made to him by Congress. Had any one these decisions been made in the first stance by Congress itself and em- bodied in the statute, its vulnerability to judicial scrutiny would have been dubious indeed. In this context, there fore, judicial review inevitably runs the risk of becoming arbitrary supervision 2. Failure to provide ne\ or other devices Employer's failure to proviJ^e either safety nets or any of alternativ\ safety devices-ladders, scaffolds, catcrcy plat forms, temporary floors, safety linW or safety belts--for workers exposed toVails of more than 25 feet constitutes serous violation of 29 CFR 1926.105(a). and revision of the Secretary's efforts to effectuate the legislative purposes in an area where variant responses might each be legitimate in the sight of Congress. Full Text of Decision GEWIN, Circuit Judge: What, in our view, differentiates the two provisions we have remanded from those we have left untouched is that the record, examined closely in relation to the relevant concerns of the Act, leaves nagging questions--even for the inexpert observer--as to the reason and rationale for the Secretary's particular choices. However the statutory standard for our review may be characterized, we con sider that our dispositions fall within it. Pursuant to 29 U.S.C. Sec. 660(b),1 the Secretary of Labor appeals from a final order of the Occupational Safety & Health Review Commission (the Com mission) which found that regulation 29 C.F.R. 1926.105(a) (1973), under which Southern Contractors Service Company (Southern) had been charged with a serious violation, was inapplicable to the facts alleged in the complaint. This regulation provides as follows: "(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water sur BRENNAN v. SOUTHERN CONTRAC face, or other surfaces where the use TORS SERVICE and OSAHRC Court of Appeals Fifth Circuit Reversal o Safety and (1 OSHC 1240). of Occupational ,, Review Commission l29 U.S.C. Sec. 660(b) (Supp.1972-73): "(b) The Secretary may also obtain review or enforcement of any final order of the Commission by filing a petition for such relief in the United States court of appeals for the circuit In which the alleged viola tion occurred or in which the employer has its principal office ... AP00000824 JGG3G PROPOSED RULES (cl TO* Deputy Administrator, Vet erinary Services, upon request to him, may approve other identification systems in specific cases and under sucii condi tions as he may prescribe if he deter mines that such systems provide the necessary information to allow for traceback of the swine to their herd of origin. Any person who wishes to submit writ ten data, views or arguments concerning the proposed amendment may do so by filing them with Deputy Administrator. Veterinary Services. Animal and Plant Health Inspection Service, U.S. Depart ment of Agriculture. Hyattsville, Mary land 20782 before August 12, 1974. All written submissions made pursuant to tills notice will be made available for public inspection at the Federal Buildin;;. 6505 Belcrest Road, Room 870, Hyattsville. Maryland 20782, during reg ular hours .of business (8 am. to 4:30 pru., Monday to Friday, except holidays) in a manner convenient to the public business (7 CFR 1.27(b)). Comments submitted should bear a reference to the date and page number of this issue in the Federal Register. Done at Washington. D.C.. this 7th day of Mat 1974! PlLRKE A. CHALOTO, Acting Deputy Administrator, Vetsrincry Services, Animal and Plant Health Inspection Service. [PR DOC.74-1D882 Plied S-9-74;*:45 am] DEPARTMENT OF LABOR Occupational Safety and Health Administration [29 CFR Part 1910 ] [Docket OSH-38) VINYL CHLORIDE Proposed Standard 1.- Background. Vinyl chloride (chloroethene) Chemical Abstracts Service Registry No. 75015, is a synthetic chemi cal ntade by oxychlorination of ethylene or by hydrochlorination of acetylene. It is the parent compound of a scries of themoplastic resin polymers and co polymers which are widely used for con tainers. wrapping film, electrical insula tion. pipe, conduit., and a variety of other products. Vinyl chloride has been made commercially in this country since 1939 and present production is in excess of seven billion pounds per year. Vinyl cliloride (VC) is a gas at am bient temperature and pressure and is a clilorinated hydrocarbon which has moderate liver toxicity. The previous standard set a ceiling value of 500 parts per million < ppm) (20 CFR 1910.93. Table 0-1). On January 22,1974. the Occupational Safety and ' Health Administration iOSHA) was informed by the National Institute for Occupational Safety and Health (NIOSH) that the B. F. Good rich Chemical Compnny reported that deaths of several of its employees from a rare liver cancer (angiosarcoma) may have been occupationally related. As a the level from a ceiling of 500 ppm to 50 result of this notification and after con ppm ceiling. It was expressly recognized sultation with the National Institute for that this standard limiting exposures to Occupational Safety and Health a 50 ppm level was Intended to be a ten (NIOSH). and a Joint inspection of the tative, Interim standard, to be In effect plant by OSHA, NIOSH, and the Ken no longer than six months, during which tucky Department or Labor, a fact-find time the whole question of possible safe ing hearing on possible hazards involved exposure to VC would be reconsidered with the manufacture and use of VC .more fully and in the light of more in was announced on January 30,1974 (3D formation, especially results of experi FR 3874) and held on February 15,1974. ments which were known to be under 2. Carcinogenicity of VC. Information way at that time. produced at this hearing demonstrated 4. Additional information. On April 15, that exposure of laboratory animals 1974, information and data were pre (mostly Sprague-Dawley rats) to VC by sented to representatives of OSHA, inhalation at and below the then current NIOSH and the EPA by the Industrial OSHA standard of 500 ppm induced Bio-Test Laboratories, Northbrook. Illi tumors, including angiosarcomas of the nois, concerning results of animal ex liver. Professor Cesare Maltoni, of the posure studies with VC, sponsored by the Instituto dl Oncologia, Bologna, Italy, Manufacturing Chemists Association reported on a series of experiments on (MCA). Although only preliminary In the effect of exposure of rats, mice, and 1 nature, these results revealed that 2 out hamsters to VC at concentrations of of 200 mice exposed to VC concentrations 10,000; 6,000; . 2,500; 500; 250; and 50 of 50 ppm for 7 hours a day, five days a ppm for varying periods of time (TR- week, for approximately 7 montlis, de-. 43-63). Some of the experiments have, veloped angiosarcomas of the liver. been concluded, and others are still on-' The Industrial Bio-Test Lab data in going. The experimental results reported dicate that exposure to VC & . 50 ppm were that tumors have been observed in may well constitute a serious health haz groups of animals exposed to VC at con ard to employees. Also, the question of a centrations as low as 250 ppm. No tumors safe level of exposure for humans can were observed in the group of animals not be determined at this time, and may- exposed to VC at a concentration of 50 continue as a matter for scientific de ppm. It also appears that the total num liberation for many years. We therefore ber of tumors, as well as the' numbers conclude that it is now necessary to pro of angiosarcomas of the liver, decreased pose to change the 50 ppm level estab as the concentrations of VC were reduced lished in the ETS to as low a level as can to 250 ppm. Another experiment by Pro be'detected using methodologies outlined fessor Maltoni was reported underway in this proposal, involving the exposure of 300 animals (5) The proposed permanent standard. to VC at concentrations of 50 ppm, in The requirements for a complete stand order to assess in a more definitive way ard under section 6(b) of the Occupa whether that level of exposure produces tional Safety and Health Act of 2970 tumors in animals. Bata reported- by are. much more comprehensive titan the Torkelson, Oyen and Rowe (American' provisions of the ETS promulgated on Industrial Hygiene Association J 22: 254- April 5. The following proposals arere- 361 (1961)) indicate that exposure to sponsive to the additional information VC at concentrations of 50 ppm failed to on the carcinogenicity of VC, and the induce tumors in rats, hamsters, rabbits, requirements of the Act. and dogs. A. Level of exposure. The proposed The employees of the B. F. Goodrich standard for employee exposure Is set at Chemical Company who died from angio no detectable level, as determined by a sarcoma of the liver had an average ex sampling and analytical method capable posure of approximately 19 years to vinyl of detecting vinyl chloride at concentra chloride, at unknown concentrations, tions of 1 ppm with an accuracy of I and variable exposures to other volatile ppmi-50 percent. Although more sensi chemicals. (TR 93). Some employees of tive methods may be available now or in Union Carbide, Firestone Tire and Rub the future, the methodological sensitivity ber, and Goodyear were also reported in proposed appears to be the most feasible post-hearing comments to have had ex and generally available. A method of l posure to vinyl chloride and to have died ppm sensitivity has been recommended from angiosarcoma of the liver. Finally, to OSHA by NIOSH. To minimize the autopsies of four deceased employees Te- number of persons at risk, a requhe- veoJed their liver angiosarcoma tumors ment would be established for regulating were histologically indistinguishable areas where vinyl chloride is manufac from, the angiosarcoma tumors observed tured. reacted, stored, handled, released, in Professor Maltonl's experimental repackaged, or used, including opera animals. tions with polyvinyl chloride containing 3. The Emergency Temporary Stand ard. On the basis of all information available at that time, and the fact that employees were being exposed at levels around the experimentally observed ef fect level of 230 ppm. on Emergency Temporary Standard <ETS> was promul detectable levels of vinyl chloride. Access to the areas would be limited to author ized employees. B. Monitoring. A program of monitor ing would be required to establish whether there are detectable levels in regulated areas and to permit determina gated on April 5, 1974 (39 FR 12342) as tion of employee exposures on an in 29 CFR 19l0.03q. This standard reduced dividual basis. Provision would also be FEDERAL REGISTER, VOL 39, NO. 92--FRIDAY, MAT 10, 1974 A PROPOSED RULES * 1CS97 . v r made for an opportunity to observe record to an employee's physician on the (5) "Decontamination" means reduc monitoring by employees or their doMu- employee's request. Establishments con tion of vinyl chloride concentrations to uuted representatives, as required by sec duct nus VC oiieititions would be required less Uian detectable levels. tion B'c) (3) ol the Act. 1o identify themselves to OSIIA, and to (6) "Detectable level" means an air C. Control methods. Where detectable report incidents (accidents) resulting in borne concentration of vinyl chloride levels of VC are monitored, two pro the release of vinyl chloride. measurable by a sampling and analytical grams would be triggered: an enpinecr- Accordingly, pursuant to sections G<b). method capable of measuring concentra inp and work practice program to reduce fi'ci, nnd 8tc> of the Occupational tions of ,1 ppm. with an accuracy of 1 levels below detectability; and while this Safety and Health Act of 1970 (84 Stat. ppm50 percent. is on-going, a respiratory protection pro 1S93. 1596,1599: 29 U.S.C. G55, 657), Sec (7 > "Director" means the Director. Na gram for employees in the regulated area. retary of Labor's Order No. 12-71 (35 FR tional Institute for Occupational Safely Engineering controls and work prac 8754> and 29 CFR Part 1911, it is here and Health, or any person directed by tices are favored methods of compliance by proposed to amend 29 CFR Part 1910 him or the Secretary of Health, Educa because they tend to avoid contamina by revising { 1910.93q as set forth below. tion, and Welfare to act for the Director. : tion of the ambient air In the workplace. Written' data, views, and arguments (8> "Emergency" means an unforseen Accordingly, it is proposed to require the concerning the proposals .may be moiled circumstance or set of circumstances, re institution of engineering controls amt to the Docket Officer, Docket OSH-3G, sulting In the release of vinyl chloride ol vorkpracUce methods as soon as fens)-' Hoorn 230,1726 M Street, N.W., Occupa into areas occupied by employees. blc. and to require the use of respirators tional Safety and Health Administra (9i "Exposure" means actual contact pending the institution of such controls, tion. Washington, D.C. 20210, post with vinyl chloride when unprotected by to supplement such controls where they marked not later than June 10,1974. required personal protecUve equipment arc insufficient to reduce concentrations Pursuant to 29 CFR 1911.11 (b) and and clothing. of vinyl chloride below the detectable (c>. interested persons may file objec (10) "Fabricated product" means a level, in specified work situations, and tions to the proposals, requesting an in finished product or part of such product, in cases of emergency. The proposal for formal hearing w:lth respect thereto, in made of polyvinyl chloride, entirely or in continuous flow and pressure demand accordance with the following condi part. Including semifinished products types of respirators is based on the rec tions: such as film, sheet, block, bar, or extru ommendations of NIQSH, which has ob (D The objections must include the sion stock, served leakage through chemical car name and address of the objector; (111 "OSHA Area Director" means the tridge respirators at high concentrations (2) The objections'must be post Director for the Occupational Safety and of vc. marked on or before June 10, 1974; Health Administration Area Office hav -A requirement would also be estab lished for the provision and use of pro tective clothing for employees in the reg ulated areas. The protective clothing would minimize skin contact with VC vapor, and would provide some measure of protection from' splash of liquid in the event of a spill or rupture of equip ment. Food, beverages, and like product* would be prohibited In the regulated area. ' Written operational and emergency plans Would be required, along with em ployee training in routine and emergency duties. Specific requirements. would be established for emergency actions and for.routine maintenance and decontami nation operations, including vessel entry, which are known to present particular hazards. The. purposes of operational Bnd emer gency ans and training are to apprise employees of the hazards to which they may be exposed, of the precautions they must take to avoid such hazards, and to rehearse employees in the procedures they must follow in emergencies. D. Medical surveillance. Comprehen sive requirements for employee medical . < xamlnoUons are proposed, including , necessary tests. Some additional guid ance is included for the convenience ol Physicians. The proposed requirements hive been recommended to OSHA by hiOSH as reasonably appropriate to de lict Jiver dysfunction which may be in dicative of, or predisposing to, the dev elopment of liver angiosarcomas. 13. Uncords and reports. Records of monitoring, medical examinations, and (3i The objections must specify the provisions of the proposed rule to which objection is taken, and must state the grounds therefor; (4 Each objection must be separately stated and numbered; and (5) The objections must be accom panied by a summary of the .evidence proposed to be adduced at the requested hearing. As revised, f 1910.93q would read as follows: - g l<M0.93q Vinyl Chloride. <a> Scope and application. (1) Tills section applies to any area or operation in which vinyl chloride (chloroethene), Chemical Abstracts Service Registry No. 75015, is manufactured, reacted, re leased, repackaged, stored, or used. In cluding areas and operations involving polyvinyl chloride where detectable levels of vinyl chloride are released. (2) This section does not apply to the Imndling or use of fabricated products made entirely or in part of polyvinyl chloride. (b) Definitions. (1) "Assistant Secre tary" means the Assistant Secretary of Labor for Occupational Safety and Health. TJ.S. Department of Labor or his designee. (Ci "Authorized employee" means an employee whose duties require him to be In the regulated area and who has been specifically assigned by the employer; and any employee who enters such an area as a designated representative of employees to exercise an opportunity to observe monitoring and measuring of vinyl chloride.. ing jurisdiction over the geographic area in which the establishment is located. (12) "Polyvinyl chloride" means poly vinyl chloride homopolymer or copol ymer before such is converted to a fab ricated product. (13) "Protective clothing" means(clothing protective against vinyl chlo ride. (14) "Vinyl chloride" means vinyl chloride monomer. (15) . "Waste resin" means any resin or other reaction products' removed in the cleaning of equipment, such as ves sels and piping. (c) Reference. College of American Pathologists.. 230 N. Michigan Ave., Chi cago. Illinois 60601. (4i Regulated areas. (1) A regulated area shall be established where (1) vinyl chloride is manufactured, reacted, re leased. repackaged, stored, or used; or (ti> polyvinyl chloride capable or re leasing detectable levels of vinyl, chlo ride Is manufactured, reacted, released, repackaged, stored, or used. (2) Access to regulated areas shall be limited to authorized employees. (3) A daily roster of employees enter ing regulated arjas shall be made and maintained. The rosters, or summaries thereof, shall be kept for at least 20 years. <e> Monitoring. (1) Every regulated area shall be monitored for detectable levels of vinyl chloride. (3) The monitoring .shall assure that' any exposure may be determined for each authorised employee with a confi dence level of 95 percent. entry to regulated areas are proposed. (3i "Closed container" means any (3i Employees or their designated rep nil provision for access by appropriate container wliich prevents the release of resentatives shall be afforded an oppor OSHA and NIOSH officials. Specific pro vinyl chloride to the environment. tunity to observe monitoring and measur visions for employee access to monitoring <4> "Contaminated" means capable ing required by tilts paragraph. records are included, as well as the re of releasing a detectable level of vinyl (1) Where exercise of an opportunity quirement to furnish a copy of a medical chloride. requires entry to an area where the use V- vr Ui,L . . F- ;i. . ix:r. 4V f -rs ; >' No. 03--Pt. I---- 10 FEDERAL 1EGISTER, VOl. 30, NO. M--FRIDAY, MAY 10, 1*74 an--g `WPW vj." '-'VTr API 826 iMi u 1<WS HOPOifD IIUIIS or protective clothing, equipment, fa (3) There shall ter tU made for cilities, or procedures is required, such proeona or equipment WLs and lor emis clothing, equipment, facilities, and pro sion of t.vti ihWWle *Mtfi may result cedures shall be provided to ail perc.ons* from The frequency of entitled to exercise the opportunity, at no tltw U,u -i.,itl be mil u U) UlMire the cost to any ot them. Integtisy i.f r-.uli^orul luul adherence to till Persons exercising the opportu proper t:,uriu-c* nity shall be instructed regarding: is* J:i tuie ,t.*k jwi .V, .'ion. (1) A res (A) The toxicity and fire hazard of piratory pri.irs uon jitoj.i am In accord vinyl chloride; and ance with | tato nt m ail be established iB) The protective steps and measures and imnirmmieu tune icsplrators are necessary for their protection. required ..! <i <u tiv U.l* lection. (ili) Observers shall be permitted, i2> Kr'tuiaiof. shall be used only In without interference to. the persons per ci>;s of r:i:nin7 amt where required forming the monitoring and measuring, by uny uiprr j-.rovu.ion of this section. to: Rciipirah.is nun not be ui in lieu of (A) Observe all steps and procedures feasible rnvmtrruig control* or work- related to the collecting, processing, and evaluation of particular monitoring and measurement samples; (B) Record quantities and results obtained; (C) Observe the condition of monitor ing and measuring equipment; prsrUce ini-tlu-ta. 3i ltc-j .:nOira or combinations of respirators fur Holer non against vinyl chloride null 1* *rlevied from among the iolloulr.i: <i) A jmsiuvc pressure full facepiece self-contained hrmihiiig apparatus; (ii) A prc.-aure-drS-.ilul lull facepiece (D) Receive a demonstration of the self-contained bsei.tr.'.".g apparatus op calibration and function tests of the erating m the jirr-.-u'e-demond mode; monitoring and measuring equipment performed on site; and (lli> A combination Ivpc "C" pressuredemand full ftuwj'leve respirator oper <E) Examine instructions and docu ating In the prr-Aurr-ueinwnd mode and ments related to the procedures and a prr-cjre-drmaniJ self-contained equipment for monitoring and mca-iuring. breathing uptoiratu* operating in the pres*urr-tem,UHi mix!,-: or (4) Accurate and complete records of flv> A rntnhiuatlon tyiv "C" continu all required monitoring shall be made ous How tvr piruior and a pressureand maintained for not less than 20 demnnrt -r-1: - ror-.'n: r.r-1 breathing ap years. Such a record shall li) state the date of such monitoring and the levels determined; and (ill Identify the instru ments and methods used. paratus him rating in the pressure-de mand mode. ihl pr..ffvlire rfuUdwg. Ml Employees entering rcruluted areas shall be pro (fl Engineering controls and trnrfc- vided fuil-laxly protective riotliing, foot practice methods. <11 Where detectable, levels of vinyl chloride ore measured. Immediate protection-shall be .provi!' wear or -hi-e rovrra. nml gloves, at DO rnr.t to II..-in. and required to wear it W lull* 111 the reevlatetl area. against exposure to vinyl chloride by the u-e of engineering controls, workpractice 12' Where Judy wnyl rlilorldc powder rontalnuiK detectable levels of vinyl methods, and respirators os follows: chloride is luiullt-ii. employees shall (I) Feasible engineering controls anti ttho be: workpractice methods shall immediately Hi l*ro\Mot and required to wear be used to reduce airborne concentra hendnr. <ni.gs: tions of vinyl chloride below the detect mi tf'-ouiml to remove all protective able level; rtotliHii; at rwh exit from the regulated tii) Wherever feasible engineering art*:*: tu.tl controls and workpractice methods which can be instituted immediately am not sufficient to reduce concentration* of vinyl chloride below the detectable iivcl. they shall nonetheless be used to reduce the concentrations to the lowest prac ticable level, and shall be .'uiui.cii'.'iin-vi by means or respirators In arrorij.ime with paragraph <g> of this section: <!.'( fteqmrrd to shower after the last rrit r! tr.r dav. (3' r*e.ii> protective clothing shall be provided whenever contaminated or mlied, tut l'.-'t lc. u frcqutaUy than weel.lv. t'lii.t-vmir.ated dulhing shall be dt-i .u.:..:i.rr n a-c by removal fur !.ir:.dfi .nr <-r <:i-j>o:al. (iii > Wherever no feasible engineering control or workpractice method c.m be instituted immediately. immctL.Uc res piratory protection shall be provided in accordance with paragraph ig> of lid* section; and (lv> In any case covered by paragraph ,, ii> ;i< nr is., i/i.'n-s und practices. ill 'll .'cm- riuiitmei-.v we required by this k, lii.n to wear protective clothing and n. ;ii uiriit. iiuu.se rooms shall le i ;.*v ..;rd m accordance with | l&lu id el. 2> vs here employees me required by (fill) (it) or lilt' of this' s'rctn n. the employer shall ai'-o undertake .is mvui or, practicable a program to reduce autn'ri.p Hits wc-..,,n tn s.'ioAcr, shower facilities rhuli t'- i -i v.'.'rd .in accordance with ) IV10 H! li'Oi. concentrations of vinyl chiendr l i t-*w I3> it: rtvgr cr <<.umprion of food the detectable level, or to ir.r griv.irst extent feasible, solely hy means of domi neering controls and woi kprr.etlre ir.eMi- ods and os soon as feasible. or lavriar**. (Uiurr nr me of smoking or run-t...! ehelre j.rnducts. and the iioin.e nr i.!'pllra!,,,ii nf rasnu-tics are j.;v.int.jie.j m re.ui.i'.-i ureas. <J) Emergency situations. (1) A writ ten operational plan for emergency situations shall be developed for each regulated area. 12) In the event of an emergency, ap propriate portions of the plan shall be put Into operation. U> Hazardous conditions created by the emergency shall be eliminated and the affected area shall be decontami nated prior to the resumption of normal operations. <ii> Special medical surveillance by a physician shall be instituted within 24- hours for employees present in the af fected area at the time of the emergency. Oil) Where an employee has a known contact with liquid vinyl chloride such employee shall be required to shower as soon as possible, unless contraindicated by physical injuries. (iv) An incident report on the emer gency shall be reported as required in paragraph <q> (2) of this section. 13) Each authorized employee shall be trained in a program relating to the hazards of vinyl chloride and the pre cautions for safe use. U) The program shall include: (A) The nature of the fire hazard, and the necessary protective steps; (B) The nature of the toxic hazard, Including local and systemic effects, acute and chronic effects including specifically the carcinogenic hazard; <C) The specific nature of operations which could result In exposure to vinyl chloride, and necessary protective steps: <D) The purpose- for and application i of the medical surveillance program: j (E) The purpose for and application of decontamination practices; IF) The purpose for and significance of emergency practices and procedures: <G) The employee's specific role under normal operating or emergency condi tions; (H) Specific information to aid the employee in recognition and evaluation of conditions and situations which may . result in the release of vinyl chloride; (I) The purpose for and application of specific first aid procedures and prac tices; (J) A review of this standard at the employee's first training and indoctri nation program and annually thereafter. (ii) All materials relating to the pro gram shall be provided upon request to authorized representatives of the Assist ant Secretary and the Director. (k) Signs and labels. (1) Entrances to regulated areas shall be posted with signs bearing the legend: CANCER-SUSPECT AGENT AHEA AUTHORIZED PERSONNEL ONLY" (2) Areas containing operations cov ered in paragraph (k> tl) (4) of this sec tion shall be posted with signs bearing the legend: CANCER-SUSPECT AGENT IN THIS AREA FULL IMPERVIOUS AIR-SUPPUED EQUIP MENT REQUIRED AUTHORIZED PERSONNEL ONLY 13) Containers of waste or other ma terials contaminated with vinyl chloride shall be labeled: FCOItai MClSUf, VOL Jf, NO M--FMDAY, MAY 10. 1474 AP00000827 PROPOSED RULES JCSS!) yaftL CHLORIDE CONTAMINATED MATERIAL CANCER-SUSTECT AGENT i--J'OSE OF OR DECONTAMINATE USING AUTHORIZED PRECEDUKES fii) When vessels are to be entered, all piping to such vessel shall, be: (A) Opened, blanked nnd tagged; or (B) Where welded piping is in use. not less than 2 valves in series, which Isolate <! Alrohol intake; <111 Past Ills lory of hepatitis; <liii Past exposure to potential hepa- totoxic agents, including drugs and chemicals: i4)containers of polyvinyl chloride the vessel from any other connection to <iv> Past history of blood transfu f .utainlnj detectable levels of vinyl such line, must be closed and secured. sions; and cidorlde shall be labeled: tiiii No employee shall enter a vessel, < v) Past history of hospitalisations. POLYVINYL CHLORIDE except when another employee properly <3> At the time ol initial emplo.vment, CONTAINS VINYL CHLORIDE * trained and equipped for entry is pres or upon institution of screening, a serum VINYL CHLORIDE IS A ent and is observing the employee in the specimen shall be-obtained for screening CANCER-SUSPECT AGENT vessel. The observer shall have means with respect to the following bio-cheml- adsorbed by breathing and THROUGH SKIN for signalling for help in the event the cal determinations of liver function: employee'experiences problems. Under <i' Total bilirubin; 15 v containers of vinyl chloride shall be labeled: VINYL CHLORIDE DANGER EXTREMELY FLAMMABLE GAS UNDER PRESSURE___ MAY POLYMERIZE WITH such conditions, the observer shall sig nal for help, and shall not enter to assist the employee until another person Is present to observe. im' Transportation loading and un loading. (1) Facilities for the loading and unloading of vinyl chloride to and <ii> Alkaline phosphatase; <lii> Scrum glutamic oxalacetie trans aminase (SOOT); (iv) Scrum glutamic pyruvic trans aminase ISGPT); and (v) Gamma glustamyl transpeptidase (GGTP). EXPLOSIVE FORCE from containers shall have each transfer (4) Additional tests that may option POISON line and vapor-equalizing line equipped ally be considered for use in screening CANCER SUSPECT AGENT AND ANESTHETIC ABSORBED BY BREATHING AND THROUGH SKIN with vent connections, and -shall have an'inert gas purging system. Vent and purge efliuent shall be returned to a proc ess stream or flared in a safe location. include: <i) Lactic dehydrogenase; fii) Serum protein determinations; (ill) Serum protein electrophoresis; (6) No Statement shall appear on or IZ> Procedures shall be developed and and near any required sign, label or instruc implemented for the transfer of vinyl (iv) Platelet count. -------- tion. which'contradicts-or detracts from chloride. Written copies of such proce (5) Laboratory analyses for all biologi the effect of any required warning, in dures shall be provided employees en cal specimens included in medical exam humation or Instruction. gaged- in such operations, and such em inations shall be performed in labora <1> Maintenance and dccontomina- ployees shall be fully trained and re- tories accredited by the college of t,un. (1) Emphasis shall be placed upon ' hearsed in all procedures. American Pathologists or licensed under immediate clean up of spills, periodic in- (3) Employees engaged In transfer op 43 CFR Part 74.j ;>ccijon, prompt repair of equipment and erations shall be provided with and (6) If the results of screening required lea Us. and proper handling, storage and required -to wear respirators in accord in paragraph <o> (3) of this section are 'disposal or decontamination of materials- ance with paragraph <g> of this section. normal, screening shall be repeated; to prevent airborne contamination and in cidental skin contact with vinyl clilo- lule. Waste materials, equipment, and (nl Polymer handling operations, fl) Containers of polyvinyl chloride releas ing detectable levels of \inyi chloride <i) Every six months for employees who have been employed in vinyl chlo ride related operations for 10 years or oilier sources of vinyl chloride in closed containers, may not be placed hi areas of excessive temperature or sunlight since biuld-up of Internal pressure may result in rupture of the container, fire or explosion. it!) Waste resins or other materials contaminated with vinyl chloride shall be placed in closed containers pending: dis posal or decontamination. t3v Appropriate procedures shall be developed and implemented for the de shall be cened and transferred nnly under local"'iifliau'st' ventilation which reduces tlio concentration of vinyl cliloride below the detectable level. (21 Hot operations, such as but not limited to milling, calendering and ex truding, -which release detectable levels of vinyl chloride, shall be carried on only under local exhaust ventilation which reduces the concentration of vinyl chlo ride below the detectable level. contamination or disposal of all such v.iisle material. (4) In maintenance or repair opera tions on contaminated--systems or equipment, including vessel entry, em ployees engaged in such operations shall to <i) provided with and required to wear and use a whole-body air-supplied. (o> Medical surveillance. Not later than ------------------ 1974, a program. of medical surveillance shall be insti tuted. and shall provide each authorized employee with an opportunity for ex aminations in accordance with this para graph. All medical examinations and procedures shall be performed by or suit Impervious to vinyl chloride, and a. respirator in accordance with paragraph (tt> of this section: and (iil required to shower alter removing protective equip ment. under the supervision of a licensed Doctor of Medicine dtp) or Doctor of Osteopathy (DO). AU'We'drcal examina tions and tests shall be provided without cost to the employee. more; and (ii) Annual.."for all bther employees' entering regulated areas. <7> -If one or more liver function tests performed are abnormal, serum testing shall be repeated as soon as possible, preferably within two to four weeks. If no abnormalities are present upon re screening. serum testing shall be re peated in three months. .i # (8) If abnormalities persist upon re- screening, the employee shall be with- drawn from areas where contact with vinyl chloride is possible, and an Individ ualized medical workshop shall be in stituted. Suggested-as initial steps ire a complete physical examination and vari ous special procedures, such as hepatitis B antigen determination and liver scan ning. ir liver function abnormalities are determined to be unrelated to liver, dis ease, .the employee may be permitted to return to vinyl chloride-related employ ment, subject to Individual medical 'evaluation. t 5 > Protective clothing and equipment (1) At the time of initial employment, (9) A complete and accurate record of shall be dean and dry for each use. or upon inst itution of screening, a physi the results of medical examinations shall <6) When vessels or piping systems are cal examination shall be performed with be made and maintained for the dura- " oj>ei:ed local exhaust ventilation shall be specific attention to detecting enlarge lion of employment plus five years, or provided to remove the escaping vapor from all occupied areas. ment of liver or spleen by abdominal palpation. lor 20 years, whichever is longer. ' <p) Records. (1) Records of monitor <7> <11 Vessels to be entered shall first bo ventilated and monitored so that the concentration of vinyl chloride is reduced to a level wltliin the protection factor (2) At the time of Initial employment or upon Institution of screening, nnd an nually thereafter, a medical history checklist shall be completed by the em ployee. This list shall include questions ing and measuring, medical records, and regulated area entry rosters and sum maries. shall be made avaUable for ex amination and copying upon request to authorized representatives of the Assist vapability of the protective equipment concerning: ant Secretary and the Director. EEDERAl REGISTER, VOL 39, NO. 92--rtlOAY, MAY 10, 1924 i j AP00000828 1CS00 PROPOSED RULES (2) In the event that the employer ceases to do business and there Is no suc cessor to receive and retain his records for the prescribed period, these records shall be transmitted by registered mail (6vs. 8(b), (>, and (c), 84 Slat. 1593. 1530. 1500 (20 US.C. 6SS, 057); Secretary of labor's Order Wo. 12-71 (30 PR 8754)) Signed at Washington. D.C. this 6th day of May, 1374. conservative limitation may no longe: be applicable, the FAA has instituted , regulatory study project to reevaluau tho limitation. The study will Include the factors originally considered In estab to the Director, and each employee Indi vidually notified In writing of this John Snares*, Assistant Secretary of Labor. lishing tho limitation as well as any othc: factors found to be pertinent. Those transfer. t3) Employees and their designated representatives shall be provided access to examine and eopy Tecords of monitor ing and measuring. (4) Former employees shall be pro vided acces to examine and eopy records reflecting their own exposures. <5) Upon written request or any em ployee, a copy of the medical record of such employee shall be furnished to a physician designated by the employee In IPR Doc.74-10748 riled 5-0-74:8:43 am] DEPARTMENT OF. TRANSPORTATION Federal Aviation Administration J14 CFR Part 25 ] [Docket No. 1369G-, Notice 74-10] TRANSPORT CATEGORY AIRPLANES Typw A Passenger Emergency Exit Capacity factors originally considered Include per tinent evacuation tests and demonstra tions, exterior slides, the number, loca tion, and size of aisles and passageways, and evacuation system reliability. Data available to the FAA on in-servlee evacuations, slide deployments, and evacuation demonstrations indicate tha: more than 100 passengers have been evacuated through a Type A exit within 90 seconds. The data further Indicate that Type A exit systems may have such request. (q) Reports. (I) Not later than _____ _the following information shall be reported to the OSHA Area Director. Any change in such information shall be reported to .the OSHA Area Director within 15 days of such'change. (I) The address and location of each establishment which has one or more regulated areas; and' ^ (II) The number of employees in each regulated area during normal operations. Including maintenance. . (2) Incidents which result in the re lease of vinyl chloride into any area where employees may be exposed shall be reported in accordance with this para graph! (1) A report of the-occurrence of the incident and the facts obtainable at that time ineluding a report on any medical treatment of affected employees shall be made within 24 hours to the OSHA Area Director. Ul> A written report shall be filed with the OSHA Area Directqr. within 15 calendar days thereafter and shall in clude; (A) A specification of the amount of material released; (B) A description of the area Involved and the extent of known and potential employee exposure and area affected: (C) A report on any medical treat ment of affected employees and any medical surveillance program imple mented; and (D) An analysis of the circumstances of the incident, and measures taken or to be taken, with specific completion The FAA Is considering rule making to Tevise the passenger seating configura tion limit that is applicable to Type A exits on transport category airplanes. Sections 25.807(c) (2) and (3) of the Federal Aviation Regulations (FARs) currently provide that for each pair of Type A exits (consisting of'one on each side of the fuselage) the airplane may have a maximum passenger seating con figuration of 100. r This advance notice of proposed rule making is being issued in accordance with the FAA's policy for early Institu tion of public proceedings in actions re lated to rule making. An "advance" no tice is Issued to invite early public par ticipation In the identification and se lection of a course or alternate courses of action with respect to a particular rule making problem. Interested persons are invited to par ticipate in the rule making by submitting such written data, views, or arguments as they may desire- Communications should identify the regulatory docket or notice number and be submitted in duplicate to: Federal Aviation Administration, Of fice of the Chief Counsel, Attention: Rules Docket, AGC-24,800 Independence Avenue, SW_ Washington. D.C. 20591. Communications should be received on or jiefore July 9, 1974, to assure proper consideration. All comments submitted will be.available, both before and after the closing date for comments, for ex amination by interested persons. The regulatory provisions relating to Type A exiLv that are contained in 5 25.- dates, to avoid further similar releases. (3) Upon completion of any monitoring and measuring which discloses that any 807 of tlie Federal Aviation Regulations were adopted by Amendment 25-15, ef fective October 24. 1967. That amend employee has actually been exposed to detectable levels of vinyl chloride, each such employee shall be individually noti fied In writing. The notice shall; U> Be delivered not later than 10 working days after completion of the ment also established the provision. In ,{ 25.803(c), that manufacturers show by demonstration that the maximum seat ing capacity of an airplane having a ca pacity of more than 44 passengers can be evacuated to the ground within 90 seconds, under conditions prescribed in higher in-service reliability than was an ticipated at the time the limitation wav established in the regulations. However, tho FAA believes it is important to re view all relevant data on safety and cost considerations that may be applicable to any proposed change In the Type A exit passenger seating limitation. To this end. the FAA solicits data, views, and argu ments from all Interested persons on the questions set forth below. Data support ing an answer should be submitted or identified sufficiently that the FAA may obtain or develop It. 1. Do the data available on evacuation tests and in-service incidents that relate to the evacuation capacity of Type A exits under emergency conditions indi cate that the 100 passenger limitations may safely be increased? 2. What reliability has been demon strated for Type A exit systems by serv ice experience and tests? 3. What relationships may ba estab lished between reliability and passenger- emergency evacuation capability of Type A exits? 4. How would the emergency evacua tion capability of Type A exits be af fected by specific Increases In passenger seating capacity and by specific passen ger seating configuration considerations? 5. If there are other factors that should be considered, how should the rel evant data be related to the emergency evacuation capability of Type A exits? 6. If the commentator recommends specific passenger capacities for consid eration, what economic and safety bene fits or penalties would be associated with' ; them? : Issued in Washington, D.C., on May 2, 1974. j C. R. Melucin. Jr.. Acting Director, Flight Standards Service. |FR Doc.74-10787 FUed 6-9-74;8-4i *m] \ ..i monitoring and measuring; the regulation. As discussed In the pre (il) State the actual exposure In terms amble to Amendment 25-15. the allow f 14 CFR Part 39 ] of concentration and time; and able passenger seating limit of ICO that [Docket No. 74-NW--4-AD] (iii) State the steps which have been taken, are being taken, and will be taken, with specific completion dates, to termi was established for each pair of Type A exists was less than the evacuation ca pacity that had been demonstrated by test. As a result of receiving data and AIRWORTHINESS DIRECTIVES Boeing Model 737-100/200 Series Airplanes nate the exposure and prevent a recur Information tending to indicate that The Federal Aviation Administration rence. some of the considerations leading to the Is considering amending Fart 39 of the FEDHAl IECISTH, VOL 39, HO. 92--FHIDAY, MAY 10, 1974 AP00000829 I U.S. DEPARTMENT OF LABOR. - Occupational Safety anJ Health Administration WASHINGTON', D.C. 20210 Public Bearing - Proposed Standard for Occupational Exposure to Vinyl Chloride Tentative Schedule of Appearances I To Begin Tuesday, June 25, 1974 Departmental Auditorium of U. S, .Department of Labor Constitution Avenue between 12th and 14th Streets, N. W. 9:30 a.m. *4 * Administrative Law Judge - Gordon J. Myatt Hearing Managutent Officer - Julius Jimeno Office of Standards Development* Daniel Boyd Cene Regad Office of the Solocitor - Ed Kline' Dave Kichenbecker .1 j Date 1 * * 4 ., June 25, 1974 I ! ' . i . . LEGEND T- Testified W- Submitted written testimony in lieu of oral testimony ' Appearance Exhibits 1. D. S. Department of Labor. Daniel P. Boyd,fT) Director of Standards Development .fox 0S1IA Herman F. Kraybill, Ph. D. (T) Scientific Coordinator for Environmental Carcinogenesis Rational Cancer Society Marvin Schnoidemian (T) . Associate Director of the Institute for Field Studies and Statistics National-Cancer Society Edwin C. Hyatt (T) Industrial Hygiene Consultant Los Alamos, IU*w Mexico 1-9 ' 10a, 10b 11 . 12 2. National Institute for Occupational Safety and Health Marcus M. Key, Th. D. (T) 'Director of National Institute for Occupational Safety and Health Accoy-poniud by Messrs. Baler, Rose, Fairchild. Wawiller, Harris, Carson Hill, Cap]an, and Lloyd * 13 I AP00000830 I. Pate Appearance -Exhibits 'June 25, 1974 # 3. United Rubber, Cork, linoleum and Plastic Workers of America Peter Bommarito (T) President of United Rubber Workers and Chairman of 1UD Committee on Health and Safety . - - Louis Beliczky United Rubber Workers Director of Industrial Hygiene Accompanied by Sheldon W. Samuels ..'14 4. Hew England Plastic Corporation John Graelch (T) Marketing Manager for New England Plastic Corp. '*15 5. Canvas Products Association International Michael J, George (W) .16 Director - Coaters and Laminators Division of Canvas Products Assoc. International. .*** * J6. PVC Belting Manufacturers Committee Earle F. Webster "-J17 Technical Superintendent and Assistant to the Vice-President of Operations Unilok Belting Division of the Georgia Duck and Cordage Mill Accompanied by Harold F. Jones and y Harry J. Lambeth 7. Mt. Sinai School of Medicine Irving J. Selikoff, M.D. -18a, 18b, 18c Professor of Medicine and Director of the Environmental Science Laboratory at the Mt. Sinai . * * School of Medicine : * .-William J. Nicholson, Ph. D. '-- i Professor, Mt. Sinai School of Medicine * ..*,7 June 26, 1974 8. Society of the Plastic Industry, Inc. Joseph Francis Tomnshefski, M.D, 20a * * Head of the Pulmonary Disease ` . Department of the Cleveland Clinic .......... .. . Ralph-L. Harding, Jr. President and Chief Staff Officer of the Society of the Plastic Industry, Inc. 20b Jerome H. Heckman, Esquire . ... General Counccl fo the Society of the Plastic Industry, Inc. . 20c *V\ % - . . AP00000831 Date June 26, 1974 'I *\ 1 j ` -June 27, 1974 t \ V **. */ <* J' J i M :h *i ? I i Appearance Exhibits 8. Society of the Plastic Industry, Inc. Anton Vittone_(T) 20d President of B. F. Goodrich Chemical Co. Division of the B. F. Goodrich Co. M. L. Keplinger, Ph. D. (T) 20e Manager of the Division of Toxicology, Industrial Bio-Test Laboratories Vince P, Ficcaglia (X) 20f . Economic Analysis and Forecastind, Arthur D. Little, Inc. . Accompanied by CharlesH. Jenest John E. Ertel (T) 20g General Manager of Robintech Xneorp. Accompanied by Carl U. Dernehl- Director , Union Carbide Corp. Submitted working notes from SPI 20h Kepner-Tregoe conference Carl U. Derehl, M.D. (T) : 20i Associate Medical Director of Union Carbide Corp. Submitted Tabershaw-Cooperreport. 20j Mauride N. Johnson, M.D. (T) 20k Director of Environmental Health B. F. Goodrich.Co. . Rudoloph H. Stehl, Ph. D. (T) 20L Senior Analytical Specialist Dow Chemical Co. Robert D. Soule, Ph. D (T) Vice-Presidentj Industrial Hygiene 20m Services for George D. Clayton" and Associates, Roger W. Strassburg, Ph. D (T) 20n Director of Environmental Affairs for the B. F. Goodrich Co. Louis J. Molinini (W) . 20o Vice-President Gollob Analytical Service Corp. Paul Beebe, Jr.(I) ... 20p Development Manager, Division of Films and Flooring * Goodyear Tire and Rubber Co. Arthur A. Smith (T) ' V"'. T* 20q Vice-President of Operations Robintcch, Incorp. .......... ... Rodney P. Becker (T) 20r Manager, PVC Application and ' . Technical Service, Plastics Div. Diamond Shamrock'Chemical Co. ... Philip J. Weaver 20s Director of Industry Affairs B, F. Goodrich Co. 11 : * -h > ' #*' f AP00000832 Date June 27, 1974 > June 26, 1974 July 11, 1974 Appearance 9. Tenneeo Chemicals, Inc. Joseph Fath CO Vice-President . Tenneeo Chemicals, Inc. Accompanied by Philip ScaritoWorks Manager- Burlington, M.J., Paul Lobo, Director- Technical Croup, Organics and Polymers Div. .ii-Khlbits . 21 10. Air Products and Chemicals, Inc. ' .. ..23a, 23b Diehard Fleming (T) Grpiifc Vice-President of Air Products and Chemicals, Incorp. ; .Accompanied by A. Ross Adorns, : T. L. Carey, Joseph Sebastianelli John G. Barr CO * Technical Manager, Manufacturing . Paul Kotin, M.D-. (T) .-.23c * Consultant on Vinyl Chloride Monomer .` Medical Hatters for Air Products and rChemicals, Inc. .*..* 11. Dow Chemical Company -V. K. Rowe (1) ' V-24 Director of Toxicological Affairs in -Health and Environmental Research * Dow Chemical Co. ' Karl Oelfke (T) Production Manager, Texas Division V Dow Chemical Co. ` 'Roger Daniel CO . Manager of Industrial Hygiene Texas Division ... Dow Chemical Co. .Ralph Cook, M.D. (T) . . `. .. Midland Division Dow Chemical, Co. Ben Holder, M.D. CO ... Medical Director for the Midland Division of Dow Chemical Co. ` i" Perry Gehring, Ph. D. (T) Director of the Toxicology Research for the Dow Chemical Co. .~ 12. Prevuc Products, Inc. (T- change in original .Schedule) . Zvi Cohen ; , .-z. President of Prcvue Products, Inc. * _19 13. Posh Chemical, Inc. (T- change in original schedule) Chris Seiboi, Jr. *. Vice-President, Posh Products, *Inc. '51 AP00000833 Pate July 11, 1974 July 8, 1974 4' r* . June 28, 1974 ir {. i- i' * II i * # r. " i .\ : ' .* I ' Appearance ' Exhibits 14. Superior Products Co., Inc. 52 (T- change in original schedule) Frank D. Gaus Owner of Superior Products Co., Inc. 15. . F. Goodrich Chemical Co. John L. Kelson (I) *,' Vice-President, 27a !. ' Manufacturing of B. F. Goodrich , . Chemical Co. . Accompanied by AntonVlttone, * Fhilop J. Weaver, Roger V. Strassburg, t Maurice N. Johnson Condict Moore, M.D. (T) * 27b Professor of Surgery and^Director of the Cancer Center University of Louisville School of Medicine 16. Piamond Shamrock Chemical Co .1 Diamond Shamrock Corp. .\ Barry E. Connors, Jr.(T) `25a . Vice-President of Diamond Shamrock Chemical Co. and General Manager of the Plastics Division of Diamond Shamrock Chemical Co. Richard W. McBurney, M.D. (T) 25b ` ` Corporate MedicalDirector of Diamond . . Shamrock Corp. 'George P. Williams (T) * 25c Production Manager, Diamond Shamrock j Chemical Co. Howard E. Everson (T) 25d Director of Safety and Environmental ? Engineering forPiamondShamrock Chemical Co. Document entitled: PROPOSED OSHA PERMANENT ' STANDARD FOR POLYVINYL CHLORIDE PIPE AND PIPE FITTING MANUFACTURING OPERATIONS 25 e 17. GAF Corporation, Chemical Division (W) -Rene Bern! Product Manager for Acetylene Chemical { Line, GAF Corporation I 10. Johns-Manville Corporation Richard P. Carter (T) -26a Director, Government Relations Environment Affairs, Johns-Manville Corp. Letter submitted on the subject of the , SIZE AND NATURE OF J-M'SPIPE AND 28b' PITE FITTING OPERATIONS .. ' AP00000834 Appestance Exhibits 18. Johns-Mansville Corporation Exhibit submitted on the subject of- VINYL CHLORIDE MONITORING Exhibit submitted on the subject of- PROPOSED OSHA PERMANENT STANDARD TOR POLVINYL CHLORIDE PIPE AND PIPE PITTING MANUFACTURING OPERATIONS (Preface) Statement submitted on the subject ofPROPOSED OSHA PERMANENT STANDARD POLYVINYL CHLORIDE PIPE AND PIPE PITTING MANUFACTURING OPERATIONS 28c 28d 28e 19. American Plastics - Howard J. Araster' President, American Plastics - . L^SO. Calgon Corporation 53 Albert Knight(T- change in scheduling) Secretary and Counsel of Calgon Corp. .William D. Lovett Development Engineer- Air Purification . -21. -Olin'Corporation B. V. Smith (W) .Vice-President, Manufacturing and ' Engineering,. Olin Corp. 61 _ 22. National Association of Food Chains Paul Korody, Jr.(W) -- Director of Governmental Affairs 1 ' National Association of Food Chains United Fresh Fruit and Vegetable Assoc. (W) 58b National Association of Retail- Grocers (W) 58c 23. Brunswick Corporation Edgar Vanneman, Jr. (T) * *26 General Attorney, Brunswick Corp. 24. Johnson Plastic Corporation (W) William F. Miller, Jr. . President, Johnson Plastic Corp. 25. Genova Company K. V. Pepper (W) . Vice-rrusident, Genova Company 59 * * 26. Rimar Manufacturing, Inc. (T) 29 Robert 1. Martin President, Rimar Manufacturing, Inc. AP00000835 Date Appearance Exhibits . 27. PPC Industries, Ire. (W) Z. G. Bell Director of Environmental Control for the Industral Chemical Div. 78 GB. Amalgamated Meat Cutters arad Butcher Workmen Arnold Mayer (W) Legislative Representative Accompanied by Ralph Quattrocchl BO 29. United Steelworkers of America (W) Adolph E. Schwartz Director- Safety & Health Department Accompanied by Marco D. Vestich and Frank Grimes -60 .. July 9, 1974 30. InternationalAssiciation of Machinists . 34a, and Aerospace Workers Angelo Cefalo Special Assistant to-the President of the Machinists Union in the Safety and Health Field Statement submitted: TOXICITY OF VINYL CHLORIDE 34b IN NORTHERN PIKE - 31. Amalgamated Clothing Workers of America AIL-CIO . Peter J. Nord Research Industial Hygienist -July 10 , 1974 4^Pa y u>-- 32. Firestone Plstics Company, Firestone Tire and Rubber Company Todd C. Walker (T) 48a' President, Firestone Plastics Company Accompanied by Francis H oy, Walter Connelly, Lawrence Ballow, George Wilson, Robert Brookroan, Michael . Baden F. F. Boyd 48b Plant Manager of the Perryville, Md. plant Document submitted by Firestone 48c . Maly 8, 1974 33. Armstrong Cork Company (T) Louis Bibri Vice President and Director of Employee Relations with Armstrong Cork Co. Accompanied by David T. Zentiuycr and George W. Nickel 30 34. Cities Service Company .John W. Swanson (W) Coordinator-Occupational Health 62 AP00000836 > Date Appearance Exhibits 35. Moore Chemical Corporation James T. Moore(V) President, Moore Chemical Corp. 63 July 9, 1974 36. JU & G. Sloane Manufacturing Co., Inc. J. T. Hickey Director of Engineering J. J. Blumenkranz ! Director of Product Research and Design i - 37. Oil, Chemical, and Atomic Workers Internation Union Anthony Mazzocchi(T) (f\l 35a Citizen-legislative Director T- Accompanied by Steven Wodka, and ' Vernon Jensen Sanford Beck (T) 35b . President, Local 3-727 OCAW July 8, 1974 38. Rubber Manufacturers Association 31 . William R. Miller (T) Manager, of Corporate Safety and Workennen's Compensation Administration* for the Goodyear Tire A Rubber Co. in Akron, Ohio . Accompanied by William T. Wickman, ill- Dennis Markusson, C.' W. Wadelon, Walter Harris, Frank Ryan 39. Certain-Teed Products Corporation 82 Paul I. Weiner(W) .Associate Counsel : -Attached is a cover letter from Pepper, Hamilton A Schcetz July 9, 1974 40. American' Chemical Society ' . 32 Stephen T. Quigley (T) Department of Chemistry and Public Affairs Howard H. Fawcett (T) Chairmen of the Committee on Chemical Safety._ of the American Chemical Society July 9, 1974 July 9, 1974 41. Virginia Plastics Company (T) Steven Rogcsc President, Virginia Plastics Co. 42. RJR Archer, Inc. (*p) RJR Filmco George Field Vice-President and General Manager 33 40 43. Emery Industries,Inc. John l). Farr (w) Technical Service and Development Manager, Plasticizers AP00000837 Cate Appearance Exhibits 4* United States Concrete Pipe Co.t (y) and its subsidiary- $edco Coup. Addison Hawley President,.United States Concrete Pipe Co. Villiara E. Cribbs Vice-President, Sedco Corp. 63 45. Valley Industrial Plastics,_nc. * Harvey R. Robinson President, Valley Industial Plastics, Inc. 46. Rubatex Corporation (W) William A. Spiekard Technical Director, Rubatex Corp. duVal Radford Attorney for Rubatex Corp. .W. Raymond Cash . Assistant Technical Service Director _ Rubatex Corp. -July 9, 1974 ... 47. Alco Standard Corporation Onslow B. Hager (T) Environmental Advisor Alco Standard Corp. 36 48. Organization Resources Counselors, Inc. Wayne T. Brooks (W) 57 ' -Consultant * ' f -49. PCI Industries, Inc. H. Martin Maglio -- Executive Vice-President t 50. A. Schulman Inc. * H. M. Zimmerman (W) Director of Manufacturing for for A. Schulman Inc. -81 July 9, 1974 ,f 51. Uniroyal, Inc. , Martin Kleinfcld(T) Commercial Planninc Director of ' llniroyal Chemical Division * Accompanied by Walter Harris, Benton Leach 37 July 10, 1974 52. Kessler Products Company, Inc. * Gerald Kessler(T) 47a 47b * Corporate Officer of Kessler Products Co. AP00000838 Appearance Exhibits 53. U-Brand Corporation Gerald R. Quinn Vice-President - Plastics U-Brand Corp. 54. National Uool Growers Association Arthur Lee Quinn General Counsel to the National Wool Crowers Association 55. Health Research Group 39a . Andrea Hricko (x) ... Staff Assistant of the Health Research Group s* ' Robert Cottine (T)' Staff Assistant of the Health Research Group Document submitted entitled: 39b HEALTH RESEARCH GROUP AND OIL CHEMICAL AND ATOMIC WORKS INTERNATIONAL UNION, PETITION FOR AN EMERGENCY TEMPORARY STANDARD ON CARCINOGENS Document submitted entitled: 39c HUEFER, MEDICOLEGAL CONSIDERATIONS OF OCCUPATIONAL AND NONOCCUPATIONAL ENVIRONMENTAL CANCERS IN LAWYERS' * . MEDICAL CYCLOPEDIA Submitted: AD HOC COMMITTEE ON THE EVALUATION -39 OF LOW LEVELS OF ENVIRONMENTAL CIEMICAL CARCINOGENS .Submitted: CARCINOGENICITY AS A PUBLIC 39e HEALTH HAZARD (T- Dr. Samuel S.' Epstein) Submitted: ADVERSE HUMAN EFFECTS DUE TO 39f CHEMICAL POLLUTANTS Testimony of Umberto Saffiotti in hearings 39g on Chemicals and the Future of Man Submitted- briefs to the U. S. Court of 39h . Appeals for the Third Circuit: SYNTHETIC ORGANIC CIEMICAL MANUFACTUR ERS' ASSOC, vs. BRENNAN Submitted- exerpt from the Federal Register- 39i Volume 38, No. 24375, on the Standards Advisory Committee on Carcinogens Submitted record from the Kentucky Workmen's 39j Compensation Board regarding Earl E. Parks Submitted article: ANGIOSARCOMA OF TIE 39k LIVER FOLLOWING VINYL CHLORIDE EXPOSURE Submitted article: ANGIOSARCOMA OF T1IE LIVER IN Tlir. MANUFACTURE OF POLYVINYL CHLORIDE 39L . Submitted scries of newspaper articles 39m Submitted petition for rehearing in the 39n T/m vs.HODGSON, U. S. Court of Appeals pate Appearance Exhibits 55. Health Research Croup '_- Submitted reprint of - article: THE ECONOMIC IMPACT OF POLLUTION CONTROL-A SUMMARY OF RECENT STUDIES Submitted petition of Che Health Research Group submitted before EPA Submitted petition of the HealthResearch Group submitted before FDA Submitted three attachment- proposed rules under the Federal Register released rdm the FDA 56. Hooker Chemical and Plastics, Ruco Piv. Raymond F. Abramowitz (W) , Technical Director, Ruco Div.. 39o 39p 39r 39s . -55 , July 9, 1974 57. General Dynamics Corporation ' C. R. Pelino' Director of Procurement ' Stromberg-Carlton Corp., subsidiary, of General Dynamics Corp. Accompanied by David Lavalefcte' 38 ' 58. .Aldan Rubber Company (W) Alan J. Hirsch (^/ffrtrrr &?rZ&f2CT Technical Operation Manager for the Aldan Rubber Company 59. Union Carbide Corporation Richard J. Hughes (K) Vice President, Chemicals and Plastics Appendix to Hughes statement .Further appendix to Hughes statement 65a 65b . 65c Jdly 10, 1974 60. General Cable Corporation (T) William Nuckols -Director of Corporate Planning for * General Cable Corp. 42 61. Health Industries Association and Medical-Surgical Manufacturers Assoc. V. Stnnton Halverson, Jr. (W) President of HIA . 66 ' 62. Witco Chemical Corporation ,, Lawrence U. Erecker Director of rroduct Development Speaking on behalf of Otto S. Kauder, Vice President of Research and Development for Argus Chemical Corp. (subsidiary of Witco Chemical Corp.) V A2 .. i AP00000840 Date July 9, 197.4 July 10, 1974 Appearance ' Exhibits 63. Goodyear Tire & Rubber Company Donald K. Francis (W) .. Director of Domestic Chemical Production Accompanied by Paul Betbe, Jr.. 56 64. Carlon \ .41 David A. DeGhetto (T) Manager of Environmental Control for Carlon 65. Harvel Plastics, Inc.(ff) . Harold A. Wagner .Vice President, Research & Development 67 . 66. Lyncor Plastics Corporation . Saul Goldstein Pre,, sident, Lyncor 67. Jomac, Xnc.(W) . R. F. Kalmbach Technical Coordinator for Jomac, Inc. * . . , '68. Harvey Hubbell Incorporated (W) William K. Gatenby " .Vice President of Harvey Hubbell Xnc. J 68 -69. American Footwear Industries Assoc. Norman Germany (T) Senior Vice President Accompanied by Barton Menitove -45, 45a, --45b, 45c 70. Georgia-Pacific Corporation 00 Paul L. Arnstrong, Jr. Technical Manager for Georgia-Pacific Corp. . * 71. General Motors Corporation Milford Barron (W) " Executive in charge of General Motors Procurement and Logistics , 72. Lyall Electric, Xnc. (and affiliated companies) (W) Lyall D. Morrill, Jr. Secretary -Treasurer 69 73. Clow Corporation (W) ' John Madden, Jr. Vice President - Operations * Clow Corp. 73 * j j i AP00000841 Date July 10, 1974 .July 10, 1974 a/ June 27, 1974- Appearance Exhibits 74. Steere Enterprises Incorporated Frank W. Steere, Jr.(T) President of Steere Enterprises, Inc. 44 75. Fields Plastics and Chemicals, Inc. Warren L. Schnur (T) .Vice President of Fields 1Plastica and Chemicals, Inc. 49 76. Mercury Plastics, Inc. V, A. Rowley 78. Crane Plastics - Jameson Crane President, Crane Plastics 84 79. Zhermoclad Company (w) Alan I. Renkis President, Thermoclad Co. -80. American Hospital Association .Billy F. Simmons Director- Division of Federal Agency Lieson, . American Hospital Assoc. 70 .. 81. Industial Union Department AFL-CIO -Sheldon W. Samuels Director', Health, Safety and Environmentaal Affairs Industial Union Department. 82. John M. Peters, M.D(T-change in scheduling) Harvard School of Public Health 22a, 22b j ! i AP00000842 Name FURTHER WRITTEN COMMENTS ' . Exhibit Number Cover letter and statement from Congressman John F. Seiberling , Statement of Arthur A. Smithy Vice President of Operations of Robintech, Inc. 54 64 Borden, Inc. 71 Statement of Fabricall Corporation 74 Statement of Pep Indus tries, Inc*. ' 75 Statement of Inflight Food Services Assoc., Inc. 76 Statement of Sheller-Globe Corporation 77 Statement of Associated Industries of New York State, Inc. 79 i AP00000843