Document ZB4VarnezeyG6mvoq42OBqG28

/9s5-- SOCIETY OF PLASTICS INDUS., INC. v. OCCUPATIONAL S. & H. A. 1301 Cite as 500 t'.Sd 1301 (1073) ty (expressly including acting "with one or more other persons," as well as "alone") and declared it unlawful, but in 28(a), 15 U.S.C. 78bb(a), very closely limited the recovery for violation, i. e., actual damages under the Securities Ex change Act, contrasted with treble dam FIRESTONE PLASTICS COMPANY, a Division of the Firestone Tire & Rub ber Company, Petitioner-Intervenor, v. UNITED STATES DEPARTMENT OF LABOR et al. Respondents. ages under the antitrust laws, 15 U.S.C. 15. Under all the circumstances, it seems to me the more logical conclusion that the later enactment wa3 either an implied amendment of the earlier, or was itself recognition by Congress that the activity described in 9(aX2) of the Securities Exchange Act had not previ ously been, prohibited by the antitrust laws. . UNIROYAL INC, Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al. Respon dents. . GENERAL DYNAMIC CHEMICAL" CO, INC, Petitioner, -? ' v. ^ OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al. Respon dents. ' .' [ The DIAMOND SHAMROCK CHEMI-, CAL CO, INC, Petitioner, The SOCIETY OF the PLASTICS . INDUSTRY, INC, Petitioner, - v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et aU, Respon dents. OCCUPATIONAL SAFETY & HEALTH; ADMINISTRATION et al. Respond dents. Nos. 505, 603-^08, 670 and 671, Dockets 74-2284, 74-2286, 74-2308, 74-2345/ 74-2449, 74-2450, 74-2491, 74-2585 and 74-2609. , United States Court of Appeals, Second Circuit. HOOKER CHEMICALS & PLASTICS CORPORATION et si. Petitioners, : Argued Dec. 13, 1974. , Decided Jan. 31, 1975. l V* ..1 ` Stay Denied March 31, 1975. ^ ' OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al. Respon dents. UNION CARBIDE CORPORATION, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR et aL, Respondents. .. The E. F. GOODRICH COMPANY, Petitioner, v. Peter J. BRENNAN et al. Respondents. See 95 S.Ct. 1444. -r r** Manufacturers of vinyl chloride and vinyl chloride products filed petition for review of health and safety regulations for the vinyl chloride industry as pro mulgated by the Secretary of Labor pur suant to the Occupational Safety and Health Act. The Court of Appeals, Mr.' Justice Clark, United States Supreme Court, retired, held that evidence sup-1 ported adoption of an exposure level of not in excess of one part per million averaged over any eight-hour period, that standard was not technologically or economically infeasible, that those who i ei II i: r.f hr- jk , 1302 509 FEDERAL REPORTER, 2d SERIES fabricated products out of vinyl chloride developed. Occupational Saferv and were properly included and that the Sec Health Act of 1970, 2 et seq 6Tb/5i retary did not exceed his power in adopt 29 U.S.C.A. 651 et seq., 655(b/5j. ing the "cancer suspect agent" labelling requirement. Petition was denied. 5. Constitutional Law =278(4) Safety standard requiring that no worker be exposed to concentrations of vinyl chloride in excess of one part per' 1. Labor Relatione =>27 Evidence supported Secretary of La bor's standard requiring that no worker be exposed to concentrations of vinyl chloride in excess of one part per million (ppm) averaged over any eight-hour peri million averaged over any eight-hour pe-` riod was not so vague and uncertain in" its terms that enforcement would violate the requirements of due process. Occu pational Safety and Health Act of 1970 2 et seq., 29 U.S.C.A. 651 et seq' od. Occupational Safety and Health Act 6. Labor Relations &=27 - of 1970, 2 et seq., 6(bX5), (f), 29 U.S. Inclusion of those who fabricate - CA.. 651 et seq., 6S5{b'K5}, (f). products out of vinyl chloride within cov 2. Labor Relations =>27 Even though ultimate facta in dis pute were only frontiers of scientific knowledge and although the factual fin ger pointed but did not conclude that exposure to vinyl chloride and polyvinyl chloride caused cancer it was the duty of erage of safety requirement that no worker be exposed to concentrations of vinyl chloride in excess of one part per million averaged over any eight-hour pe riod was justified. Occupational Safety and Health Act of 1970, 2 et seq., 29 U.S.C.A. $ 651 et seq. the Secretary of Labor to act to protect the employees in the industry and to act even in circumstances where existing methodology or research was deficient. Occupational Safety and Health Act of 1970, 2 et seq., 29 U.S.C-A. 651 et seq. . 7. Labor Relatione <=27 Requirement that all entrances, work areas and containers related to vi nyl chloride monomer or polyvinyl chlo ride manufacture and polyvinyl chloride fabrication bear the legend "Cancer-Sus pect Agent" was not beyond the statuto 3. Labor Relations <s=>27 ry power of the Secretary of Labor in Health and safety regulations for the vinyl chloride industry, which regula tions require that no worker be exposed to concentrations of vinyl chloride in ex cess of one part per million averaged promulgating safety standards for expo sure to concentrations of vinyl chloride. Occupational Safety and Health Act of 1970, 2 et seq., 6(bX5), 29 U.S-C.A- 651 et seq., 655(b)(5). over eight-hour day, were not invalid on ground that such standard was not a feasible one. Occupational Safety and Health Act of 1970, 2 et seq., 6(b)(5), 29 U.S-C.A. 651 et seq., 655(b)(5). 8. T-abor Relations =>27 Considering delay occasioned by pe titions for review of vinyl chloride regu lation of Occupational Safety and Heath Standards for the vinyl chloride indus 4. Labor Relations <=27 try, a reasonable "lead time" was appro In promulgating safety and health priate; thus, it was ordered that the policies under the Occupational Safety Secretary of Labor's regulations, rather and Health Act the Secretary of Labor is than being effective on January 1. 1975,. not restricted by the status quo; he may as stated in the regulations, would be raise standards which require improve come effective 60 days after data of ment in existing technology or which re CJourt of Appeals' order and that the quire the development of new technology time requirement as to respiratory Pro and is not limited to issuing standards tection be rescheduled accordingly- Oc based solely on devices already fully cupational Safety and Health Act SOCIETY OF PLASTICS INDUS-, INC. v. OCCUPATIONAL S. & H. A. 1303 Cit<tas 80S K.Stl 13UI (1B75I ' 1970, 2 et seq., 6{bX5), 29 U.S.C.A. tions of vinyl chloride in excess of one 651 et seq., 655{bX5), part per million (ppm) averaged over any eight-hour period. 29 C.F.R. 1910.- John J. Cassidy, Jr., Chicago, III. (Vedder, Price, Kaufman & Kammholz, Chi cago, III., on the brief), for petitioners. Stephen F. Eilperin, Asst. Chief, Ap 93q(cXl>. Petitioners--manufacturers of vinyl chloride and vinyl chloride products-- make five principal claims: (1) the avail pellate Section, Civil Div., Dept of Jus able scientific and medical evidence does tice, Washington, D. C., for respondents. George H. Cohen, Washington, D. C. {Bredhoff, Cushman, Gottesman & Co hen, Washington, D. C., on the brief), for intervenor Industrial Union Department, afl-cio. Lawrence Gold, Washington, D. C. (Well, Mayer & Gold, Washington, D. C., on the brief), for intervenor AFL-CIO. Allan Topol, Washington, D. C. (Cov ington & Burling, Washington, D. C., on the brief). Jerome H. Heckman, Washington, D. C. (Keller & Heckman, Washington, D. C., on the brief). Waiter B. Connolly, Jr., Akron, Ohio, Firestone Tire and Rubber Company. not establish that the 1 ppm exposure level adopted by the Secretary is re quired by health or safety considera tions; (2) that the Secretary violated the requirements of 29 U-S.C. 655(bX5) by adopting a standard which is technologi cally and economically infeasible for the industry to meet; (3) that the standard i3 so vague and uncertain in its terms that enforcement will violate the re quirements of due process; (4) that there was no substantial evidence in the record to support the Secretary's conclusion that those who fabricate products out of vinyl chloride should be subject to the same requirements as those who produce vinyl chloride; and (5) that the Secre tary's 3ign and labelling requirements An amicus curiae brief was filed on behalf of Chemical Fabrics & Film Asso ciation. Before CLARK, Associate Justice,* BRYAN, District Judge,** and DUFFY, unduly and hence unlawfully emphasized the carcinogenic properties of vinyl chlo ride. We find these contentions merit less, and the petitions for review areac- cordingly denied. - District Judge.*** I- -S-'-ifl Mr. Justice CLARK: This is a petition for review of the health and safety regulations for the vi nyl chloride industry, 29 C.F.R. 1910.93q, promulgated by the Secretary of Labor on October 4, 1974, pursuant to the Occupational Safety and Health Act, 29 U.S.C. 651 et seq. (hereinafter OSHA). The standard and the Secre tary's statement of reasons for it3 impo sition are set forth at 39 Fed.Reg. 35890-35898. In brief, the Secretary has adopted a standard which requires that no worker is to be exposed to concentra SCOPE OF JUDICIAL REVIEW'^ \' Before proceeding to an examination of1 the regulations at issue in this case, it would be wise to reemphasize the unique nature of the court's role under OSHA. Although the statute sets forth genera^ policy objectives and a procedural frames work, the formulating of specific safety and health policies is left to the Secre tary, subject to review in the United States Courts of Appeals. Our mandate is contained in 29 U.S.C. 655(f), which states in relevant part: * United States Supreme Court, Retired, sitting by designation. ** United States District Court, Southern Dis trict of New York, Retired, sitting by designslion. *** United States District Court, Southern Dis-' trict of New York, sitting by designation. 1304 509 FEDERAL REPORTER, 2d SERIES The determinations of the Secretary shall be conclusive if supported by sub stantial evidence in the record con sidered as a whole. Yet the traditional "substantial evi dence" test is almost impossible of appli cation where, as here, the Secretary's de cision-making is essentially legislative in character. The probiems involved in according ju dicial review in such circumstances have been wisely discussed by Judge McGow an in Industrial Union Department, AFI^CIO v. Hodgson, 162 U.S.App.D.C. 331, 499 F.2d 467 (1974), who pointed out that, under OSH A: [T]here are areas where explicit factu al findings are not possible, and the act of decision is essentially a predic tion based upon pure legislative judg ment, as when a Congressman decides to vote for or against a particular bill. **** [F]oIiey choices of this sort are not susceptible to the same type of verifi cation or refutation by reference to the record as are some factual ques tions. Consequently, the court's ap proach must necessarily be different no matter how the standards of review are labeled. [499 F.2d at 474-475.] In these circumstancss. Judge McGowan concluded, the reviewing court must rec ognize that its task defies generalized description and go from there to achieve its paramount objective which "is to see whether the agency, given an essentially 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 Assn. V. Boyd, 132 U.S.App.D.C. 200, 407 F.2d S30, S38 (1968). Thus armed with these salutary re marks on our limitations and our obliga tions, we turn to the challenged regula tions. The examination of the 4,000page record in this case has been a pro digious task, aggravated by duplications of testimony, irrelevant exhibits and let ters, almost illegible reproduction of doc umerits, and a generally blunderbuss ap proach in petitioners' briefs. Given the task, however, we have performed it and conclude that the standard laid down by the Secretary is fully supported by the record and well within the requirements of Universal Camera Corp. v. NLRB 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed.' 45$ (1951), and Assoc. Industries of New York State, Inc. v. Department of Labor 4S7 F.2d 342 (2d Cir. 1973), as well as' Industrial Union Department, AFL-CIO v. Hodgson, supra. II. BACKGROUND There are three basic components of the vinyl chloride industry. First, there are the manufacturers of vinyl chloride itself. A gas at ambient temperatures and pressure, vinyl chloride monomer (VCM) is primarily synthesized by the oxychtorination of ethylene in a handful of large outdoor production plants which resemble oil refineries. Shell, Dow, and Goodrich are the leading pro ducers, accounting for some 50% of the 5.2 billion pounds annually available in the United States. Because of the high degree of automation involved in this manufacturing process, only some 1,500 workers are employed in VCM produc tion. VCM plants are open-air facilities, primarily in the South. Second, there are the manufacturers of polyvinyl chloride (PVC). Virtually all vinyl chloride is polymerized into thermoplastic PVC resin which serves as the basis for a wide variety of useful plastic products. Goodrich is by far the largest single producer, producing some 20% of the country's 5.4 billion pounds annually, though in total there are only 2L companies operating the S7 PVC plants. Historically, PVC production has been a "batch" or non-contmuous opera tion carried out in relatively small (2,000-6,000 gallon) "reactors" which re quire frequent cleaning; the trend, how ever, is towards substantially larger re actors. PVC plants are not open-air fa cilities and are generally located in cola- SOCIETY OF PLASTICS INDUS., INC- v. OCCUPATIONAL S. & H. A. 1305 CEti; la 300 K M 1301 (107S> er climates than VCM plants. They emp[oy some 5,000 workers. Third, and finally, there are the fabri cators of products which utilize PVC res ins. Innumerable firms throughout the country, employing thousands of work ers, compound PVC with plasticizers, heat stabilizers, lubricants, light stabiliz ers, flame retardants, or impact modifi ers to produce an astounding variety of wares, such as pipes and conduits for building and construction, flooring, wire and cable, furniture, phonograph records, and packaging. In fabrication, residual VCM that has been entrapped in the pVC resin escapes during the heating process, and in this way workers in the fabricating industry are also exposed to vinyl chloride. It is now clear that the workers in all components of the vinyl chloride indus try are subjected to a serious health risk from VCM. Although conclusive proof of the carcinogenic and, in turn, fatal character of VCM did not emerge until early in 1974 when the deaths of three workers in Goodrich's PVC plant at Louisville were reported, strong warning signals had appeared long before. As early as 1949, when the vinyl chloride industry had barely reached its tenth an niversary, a study conducted among vi nyl chloride workers in the Soviet Union found liver damage in 15 of 45 workers studied, and in 1958 and 1959, Dow Chemical scientists elicited liver irregu larities in rats and rabbits at a 100 ppm concentration of VCM. Although Dow recommended a 50 ppm allowable level in 1961, the industry adhered .to its pre vious 500 ppm standard. We need not outline in detail the mor bid "Vinyl Chloride Chronology", pub lished by an industry spokesman, the Manufacturing Chemists Association (MCA), in a 1974 press release (Joint Ap pendix at 134-145) in order to illustrate the mounting evidence of VCM's carcino genicity. Indeed, the record shows what not reached its thirtieth anniversary, upon receiving recurring reports of the softening of the finger tips and bone of VCM/PVC workers, the Manufacturing Chemists Association ha/1 the University of Michigan study the causes of this ab normality. Three years later, in 1970, when it was advised that research could not pinpoint the cause of the malady bat recommended a VCM/PVC ceiling of 50 ppm VCM, nothing was done. And.in March of the same year, Dr. P. L. Viola of the Regina Elena Institute for Cancer Research in Rome, Italy, published a' re port that 30,000 ppm VCM exposure for four hours per day, five days per week for a year caused cancer of the skin, lung, and bones of rats, and a few months later at the Tenth International. Cancer Congress, described observations of malignant tumors in the ear canals,of rats subjected to the same exposure. Apparently relying on Dr. Viola's cciinr ment at the close of his abstract that:. "No Implications to human pathology can be extrapolated from the experiment tal model reported in the paper," the industry did nothing. In 1971, MCA began to inquire by let;, ter regarding the conduct of toxicologic, cal studies on laboratory animals^ wjth VCM and in May of 1971 heard .a,, dey tailed presentation by Dr. Viola regard-; ing his earlier studies as well as.other studies then unreported. The industry began talking about raising funds for epidemiological research on VCM carci nogenicity, but not until March 30, 1972, did 17 U.S. companies agree to finance such a study. By then, the first deaths of U.S. workers due to VCM exposure' were being recorded. x'c-r'- Months were consumed in 1972 by.'rie-J gotiations among the participating com pany representatives, and it was not un til February of 1973 that a protocol was agreed upon and a research contract for animal exposure studies signed. Mean-' while, startling results from European can only be described as a course of con tinued procrastination on the part of the industry to protect the lives of its em ployees. In 1967, when the industry had experiments were filtering back to the industry. By January of 1973 it was'' discovered that European experiments with rats had not only found tumors of S00 F.2d--82V, 1306 509 FEDERAL REPORTER, 2d SERIES the ear canal (which Dr. Viola had re ported as early as 1970), but also of the kidneys and liver at concentrations as low as 250 ppm VCM, but not at 50 ppm. This discovery, however, was kept confi dential, and it was not even revealed to the National Institute of Occupational Safety and Health (NIOSH) until July 17, 1973. Earlier, on September 27, 1971, a pa tient of Dr. J. L. Creech, Jr., plant physi cian of the B. F. Goodrich Chemical Company in Louisville, Kentucky, died. The patient had been employed for 15 years as a helper and operator in Good rich's Louisville PVC plant. When first hospitalized, a tentative diagnosis was made of a bleeding duodenal ulcer, but upon re-admittance and after an explor atory laparotomy and biopsy was carried out, he was found to have angiosarcoma of the liver, an exceptionally rare and irreversible cancer which strikes only 1 person in some 50,000, no more than 20-- SO persons a year. Eighteen months la ter, on March 3, 1973, another former employee of the Lousiville plant died, and a third died on December 19, 1973, again of angiosarcoma of the liver. Re cognizing the rarity of the tumor and learning that all three had worked in the Goodrich PVC plant. Dr. Creech brought the matter to the attention of Goodrich, and then on January 22, 1974, to the attention of the National Institute of Occupational Safety and Health (NIOSH). News of other deaths followed swiftly. On January 29, 1974, Goodrich reported the death of a fourth former employee from angiosarcoma; a report of the death of a fifth employee followed on February 15th, Six days later. Union Carbide advised NIOSH of the death of one of its PVC workers from liver an giosarcoma. Goodyear Tire and Rubber Company announced a vinyl chloride worker fatality from liver angiosarcoma on March 1, 1974, and reported two more such deaths from the same cause on March 22nd. Goodrich reported eases of liver angiosarcoma in two of it3 living employees. On April 16. 1974, Firestone Pla3tics announced the death of one of its employees from the same disease Finally, on May 10, 1974, the National Cancer Institute diagnosed another Un ion Carbide VCM worker as a victim of the same disease. In all, the deaths of 13 workers in the PVC and fabricating industries were reported. III. THE SECRETARY'S ACTIONS Two days after Goodrich made its re port to NIOSH of its first three VCM worker deaths, an inspection of its plant by NIOSH indicated considerable expo sure of workers to VCM, and control procedures as well as precautionary mo nitoring were recommended, NIOSH alerted other federal agencies and after additional investigation soon concluded that VCM was the suspect agent for a new occupational cancer. On April 5, 1974, the Assistant Secretary of Labor, acting on behalf of the Secretary, held a hearing and promulgated an emergent temporary standard of 50 ppm TWA1 in lieu of the prevailing 500 ppm one. At the hearing, industry itself showed con cern, and evidence was presented that both VCM and PVC plants could reduce concentrations below 50 ppm TWA. As in the past, Dow Chemical spoke out for worker safety and urged that industry exposure be reduced, to 50 ppm TWA by operational and engineering changes and, that appropriate respiratory protection be given where such level was not at tainable. The Assistant Secretary con cluded that the evidence demonstrated VCM to. be carcinogenic for man. See 39 Fed.Reg. 12342. Monitoring and housekeeping requirements were also inr posed, and a requirement was included that, if the 50 ppm level was breached, appropriate respiratory equipment be furnished workers. The emergency or-^ der was limited to six months "during which time the whole question of posSK ble exposure of humans to VC would b 1. Time Weighted Average (TWA) represents a worker's cumulative exposure to a toxic during a. 9-hour shift. SOCIETY OF PLASTICS INDUS., INC. v. OCCUPATIONAL S. St H. A. 1307 Cite14 300 F.Cil ISO! 11075> reconsidered more fully and in the light of more information, including experi ments which are underway at the time." On April 9, 1974, the Industrial Bio Test Laboratory notified MCA that its preliminary findingg in their animal ex posure study showed that angiosarcoma of the liver was produced in mice at a level of 50 ppm of vinyl chloride, and MCA so informed the federal govern ment. On May 10, 1974, the Assistant Secretary again acted. Issuing a notice of proposed permanent rulemaking, he drew attention to the MCA study results and noted that: "the question of a safe level of exposure for humans cannot be determined at this time, and may contin ue as a matter for scientific deliberation for many years." 39 Fed.Reg. 16986. In the interim, he concluded, it was neces sary to abandon the 50 ppm emergency temporary .standard and to establish it at as low a level as can be detected using (2) In place of the potentially obscure "no detectable level" standard, a permis sible exposure limit not greater than 1 ppm averaged over an eight-hour period is set, but allows for peaks of VCM ex posure up to 5 ppm during periods not exceeding 15 minutes. 29 C.F.R. *1910.93q(c). (3) AH employers are required to con duct an initial program of monitoring and measurement of exposure levels, but need not continue monitoring If Initial levels are below the so-called '"action lev el" of 0.5 ppm averaged over the eighthour work day, 29 C.F.R. 1910A3q(d). (4) The standard requires that "feasi ble engineering and work practice con trols" be employed to reduce exposure below the permissible exposure wherever possible or to the lowest practicable level if not possible, supplemented by respira tory protection. 29 C.F.R. 1910.93q(fK2). methodologies sensitive to 1 ppm plus-orminus 50%, L e., the so-called "no-detect able" level. This level was to be reached through the "institution of engineering controls and work practices as soon as feasible," but respiratory protection wa3 (5) Where respiratory protection is re quired under the standard, suitable equipment, as indicated by a chart in the standard, shall be provided, and use shall be required of employees unless the_ VCM level fc below 25 ppm measured to be afforded where the goal could not otherwise be achieved. On May 24, 1974, notice of a hearing on the proposed standard to be held be fore an Administrative Law Judge was given. Eight days of hearings were held during June and July of 1974, and addi tional materials were received from in terested parties until September 25th. In addition, the record of the previous hearing on February 25, 1974, was or dered to be included. On October 1, 1974, the final standard was promulgated, effective January 1, 1975.2 See 39 Fed.Reg. 35890, The main provisions are as follows:1 over any 15 minute period, in which case the use of respiratory equipment is op-` tional with the employee until January 1, 1976. 29 C.F.R. 1910.93q(gXD. , ' ' (6) Employees working in certain haz ardous operations, especially those in volved in physically cleaning the interi ors of PVC manufacturing reactors,'shall be provided protective garments and res piratory equipment. 29 C.F.R. 1910.-' 93q(h) (7) A medical surveillance program is' required for all employees exposed to: VCM in excess of the action level of 0.5 ppm. 29 C.F.R. 1910.93q(k). (8) Finally, in addition to certain record-keeping requirements, all entranc (1) The standard applies to manufac es, work-areas, and containers related to turers of YCM and PVC and to fabrica VCM or PVC manufacture and PVC fab tors of PVC, but excludes those merely rication are required to be labeled with handling or using already-fabricated the warning legend: "Cancer-Suspect products. 29 C.F.R. 1910.93q(aX2). Agent". 29 C.F.R. 1910.93q(/>. * Petitioners' application for stay of the January 1st deadline was granted pending our disposition of the matter. 130S 509 FEDERAL REPORTER, 2d SERIES IV. a level below 50 parts per million PETITIONERS' CONTENTIONS (a) which in truth is now only a fifty-fold safety factor in terms of the proposed standard. According to toxicological Jl, 2] Petitioners' initial claim is that the available scientific medical evidence does not establish that the 1 ppm expo sure level adopted by the Secretary is required by health or safety considera tions. They claim that no proof exists in the record to justify such a low stand ard, since all of the medical witnesses testified that no one can say whether exposure to VCM at low levels was safe or unsafe. Further, they point to studies principles, were this compound a non carcinogen, then to establish a toler ance or safe level, there would have to he a 100 to 1 margin of safety in terms of a no-effect level, and from the experimental data on the animals we don't even know what the no-ef fect level is. Obviously, this would put the allowable level at a small frac tion of a given standard--of the given standard. of employee health by Dow Chemical over a number of years which concluded that exposure to VCM below 200 ppm did not lead to any adverse effect. We find, however, that the evidence is quite sufficient to warrant the Secre tary's choice. First, it must be remem bered that we are dealing: here with hu man lives, and the record reveals that 11 manufacturing: plant workers and two fabrication plant workers have already died, from the effects of this potent chemical. Moreover, the animal expo sure study, sponsored by MCA, the in dustry's own trade association, identified fatal liver angiosarcoma and other kid As in Industrial Union Department, AFL-CIO v. Hodgson, supra, the ulti mate facts here in dispute are "on the frontiers of scientific knowledge'', and, though the factual finger points, it does not conclude. Under the command of OSHA, it remains the duty of the Secret tary to act to protect the workingman, and to act even in circumstances where existing methodology or research is defi cient. The Secretary, in extrapolating the MCA study's finding from mouse to man, has chosen to reduce the permissi ble level to the lowest detectable one. We find no error in this respect. ney and liver diseases at the 50 ppm level. None of the physicians or scien (b) tists who testified coaid identify a safe [3,4] Failing in this contention, peti level of exposure to VCM, nor the pre tioners strongly urge that the Secretary cise mechanism by which it produces breached his statutory mandate to insure cancer; yet expert after expert recom that the standard selected is a "feasible" mended that this "very virulent" carci one-3 Relying on the so-called Snell Re nogen be restricted to the lowest detect port,1 petitioners claim that VCM and able level. Indeed, as one witness. Dr. PVC manufacturers will never be able to Kraybtll of the National Cancer Insti reduce levels of exposure to 1 ppm tute, testified: through engineering means. They point Certainly, there is little margin for to the conclusion reached by the Snell safety if a response can be expected at Report that: 3. 29 U.S.C. 655(bX5) provides in part: The Secretary * * * shall set the standard which most adequately assures, to the extent feasible, on. the basts of the best available evidence, that no employee wilt suffer material impairment of health or functional capacity * * *. - 4. This report, "Economic Impact Studies of the Effects of Proposed OSHA Standards for Vinyl Chloride," was prepared in September of 1974 by Foster D. Snell, Inc., an Independ ent consultant, at the request of the Secretary of Labor and estimates the cost to the indus try of complying with various exposure levels between 50 ppm and 0-1 ppm. Plant mw industry visits were the principal means " information gathering. SOCIETY OF PLASTICS INDUS., INC. v. OCCUPATIONAL S. & H. A. 1309 Cite as SUE) t'.lkl 1S01 ( 107j) The costa of compliance increase rapid ly with decreasing VCM target levels and represent significant engineering uncertainty or infeasibility beyond 10 ppm ceiling and 2-5 ppm TWA for the VCM industry and 15-25 ppm ceiling and 10-15 ppm TWA for the PVC in dustry. According to the report, "[b]ased on the industry surveys and Snell's independent assessments of the .state-of-the-art of the technology," the standard price of VCM would only rise frum 7.41$/Ib. at present to 7.69c/lb. at a target level of 2-5 ppm TWA, but would supposedly soar to 12.7l<t/lb. at the the "no-detectable" lev el. In his statement of reasons in support of the standard, the Assistant Secretary acknowledged the industry contention and the Snell conclusion about the in feasibility of the 1 ppm level, but noted that: "Labor union spokesmen and the Health Research Group, Inc., however, have suggested that such a level is at tainable." The Assistant Secretary went on to say: Since there is no actual evidence that any of the VC or PVC manufac turers have already attained a 1 ppm level or in fact instituted all available engineering and work practice con trols, any estimate as to the lowest feasible level attainable must necessar ily involve subjective judgment. Like wise, the projections of industry, labor, and others concerning feasibility are essentially conjectural. Indeed, as Firestone has suggested, it is not pos sible to accurately predict the degree of improvement to be obtained from engineering changes until such changes are actually implemented. We agree that the PVC and VC es tablishments will not be able to attain a 1 ppm TWA level for all job classifi cations in the near future. We do be lieve, however, that they will, in time, be able to attain levels of 1 ppm TWA for most job classifications most of the time. It is apparent that reaching such levels may require some new technology and work practices. It may also be necessary to utilize tech nology presently used In other indus tries. In any event the VC and PVC industries have already made great strides in reducing exposure levels. {See testimony of Dow Chemical Co., TR 973). For example, B. F. Goodrich testified (TR 1120) that it has reduced average exposure level3 in severaL PVC plants from 35-40 ppm early this year to 12-13 ppm at the time of the hearing. We are confident that indus try will continue to do 30. [39 Fed. Reg. at 35892.] We cannot agree with petitioners that, the standard is so clearly impossible of attainment. It appears that they simply need more faith in their own technologi cal potentialities, since the record reveals that, despite similar predictions of impos sibility regarding the emergency 50 ppm standard, vast improvements were made in a matter of weeks, and a variety of useful engineering and work practice controls have yet to be instituted. In the area of safety, we wish to emphaslzes the Secretary is not restricted by . the status quo. He may raise standards which require improvements in existing technologies or which require the devel opment of new technology, and he is not limited to issuing standards based solely on devices already fully developed. Gf. Chrysler Corp. v. Dept, of Transporta-' tion, 472 F.2d 659, 673 (6th Cir. 1972);' Natural Resources Defense Council, Inc.' v. E. P. A., 489 F2d 390, 401 (5th Ciri 1974). There is much testimony in the record, especially in the Snell Report, Indicating that VCM concentration can be easily pinpointed and largely corrected. For example, many of the companies en gaged in PVC manufacture still perform the cleaning of batch reactors by open ing the vessel and having the worker physically enter it. In chipping off the accretion from the walls of the vessel, the worker is thus exposed to a high concentration of VCM. Yet other, les3 hazardous methods are currently availa ble and in use, in which the vessels are cleaned by machinery, emulsions or sim- 1310 509 FEDERAL REPORTER, 2d SERIES ply water under high pressure. Other sources of exposure are encountered in filling tank cars, measuring, testing and repairing pipe joints or other connec tions. The Snell Report indicates that much of this may be alleviated. But whether it can or not, the Secre tary's compliance scheme does not rest only on engineering and work practice controls. He does mandate that the in dustry use such technology to the extent feasible, but, more importantly, he re quires that. In addition, respiratory pro tection he used if engineering means cannot bring the VCM level down to the permissible limit. To be sure, respirators have their drawbacks. These problems were de tailed at the hearings and recognized by the Assistant Secretary. Self-contained and air-hose type breathing equipment is bulky, expensive and infeasible for full time use, as well as potentially hazard ous in terms of tripping, restricted mo bility, and over-exhaustion of workers. But the fact remains that they effective ly eliminate exposure to VCM, and they are already being used by some PVC companies in the cleaning process and at other points in production with good suc cess. Like the industry's claims about the impossibility of achieving compliance through technological means, petitioners1 claims of dire consequences from the re quirement of respiratory protection are exaggerated. It does not appear that full-time use of respirators is necessary, and the Snell Report points this out. Furthermore, lightweight. Inexpensive cartridge or cannister-type respirators, which can effectively filter out VCM at low levels, are now available and accept able. Contrary to petitioners' assertions, the Snell Report indicates that a variety of respirators are reasonably available. (c) [5--7] We find that the Secretary's di rections are clear, definite, and certain and that they are also entirely feasible, since the goal of the lowest detectable level can definitely be attained through the combination of technological means and respirators. Our conclusion in this regard is buttressed by the fact that only some 6,500 of the workers coming under the standard--those in the VCM and PVC manufacturing field--are po tentially exposed to high or constant VCM concentrations, and only a smalt percentage of them are actually subject to excessive concentrations of the chemi cal during manufacture. The remaining hundreds of thousands of workers are in the fabrication field where exposure is already so low that some of the petition ers claim that the fabricators should not evqn be under the standard; these, of course, have been included because of their work with PVC resin which in final form contains residual amounts of VCM, and the record shows that two deaths have in fact occurred among fabricators. If, in the future, the monitoring under the standard indicates that the VCM lev el among fabricators is sufficiently low and that the sporadic, unpredictable ex posure of these workers to residual VCM has been controlled, the fabricators might well he excluded or included in a separate, less rigorous standard. Cer tainly if PVC producers were able to eliminate all residual VCM from the res in before it is delivered to the fabricator, there would seem to be no reason for their inclusion. But this would be for the Secretary to decide on appropriate application or on his own motion, and, as the record presently stands, their inclu sion is amply justified. In any event, compliance is timephased and, if the petitioners find that they cannot comply for reasons beyond their control, OSHA permits the amend ment of standards. See 29 U.S.C. 655(bX6XA). Upon application and sufficient proof of such a situation, we feel certain that the petitioners would obtain relief at the hands of the Secre-_ tary. This is especially true of the "can cer suspect agent" labelling require ments which petitioners urge are beyond statutory contemplation. We think that the Secretary is simply "fighting fit* with fire" and using the labels to bring the danger of vinyl chloride forcibly to LOWRY v. BLACK HILLS AGENCY, INC. Cite as 300 F.2d 1JJI1 <1375! 1311 the attention of the workers. Cf. Syn thetic Organic Chemical Mfrs. Assn. v. Brennan, 503 F.2d 1155 (3d Cir. 1974). They deserve no less treatment. We jiave also considered the other argu ments of the petitioners and find them untenable. gue, J., entered judgment on verdict in favor of assignees, and agency appealed. The Court of Appeals, Stephenson, Cir cuit Judge, held that evidence concern ing errors of insurance agent in ordering various items of insurance, placing of binders, and ultimate coverage furnished was relevant to issue of agent's credibili ty and was admissible, that it was not an [8] It Is our conclusion that the chal abuse of discretion to permit assignees'to' lenged aspects of the Secretary's vinyl elicit expert opinion of agency's presi chloride standard are supported by sub dent as to whether insured'3 account was stantial evidence in the record and that handled in a reasonable and prudent and the petitions for review must be denied. careful manner consistent with practices Taking into account the delay occasioned of insurance industry in area, and that by these petitions, we think that a rea trial court properly allowed assignees to sonable "lead time" is appropriate and cross-examine a former employee. of therefore order that the Secretary's reg agency as an adverse witness where em ulations, rather than, being effective Jan ployee was a managing agent while eni-| uary 1, 1975, shall become effective sixty ployed and might well have been a de^ days after the date of this order and fendant in action. that the time requirement as to respira tory protection contained in 29 C.F.R. Affirmed. .. : = 'd:S. 1910.93q(gXl) is re-scheduled accord ingly. I. Federal Civil Procedure *=>1181 The trial court necessarily has con siderable discretion in ruling on the ad missibility of evidence and mu3t weigh jjj HIT NUMBER SYSTE/Ub the probative value a3 opposed to'the prejudice created. .-bed Robert W. LOWRY and Janel X Lowry, Appellees, v. BLACK HILLS AGENCY, INC., Appellant. No. 74-1299. United States Court of Appeals, Eighth Circuit. Submitted Oct. 17, 1974. Decided Feb. 10, 1975. Assignees of insured brought action against insurance agency for alleged negligence in failing to procure umbrella liability protection for insured. The United States District Court for the Dis trict of South Dakota, Andrew W. Bo- 2. 'Witnesses <=406 V Once insurance agent testified that he tried to sell insured unhrella protec tion but that insured specifically refused to purchase same, evidence concerning errors made by agent in ordering various items of Insurance, placing of binders, and ultimate coverage furnished was rel evant to issue of agent's credibility and was admissible in action wherein, as signee of insured sought to "recover against insurance agency for alleged neg ligence in failing to obtain umbrella'lia bility insurance for insured. " '* 3. Insurance = 103.1(2) Evidence concerning late delivery of policies after accident in question was relevant to insured's claim that he was unaware of lack of umbrella coverage prior to accident and was admissible in action wherein assignees of insured sought to recover against insurance agency for alleged negligence in failing r i i- f