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.JOSEPH E. KELI-ER JEBOME H. HECKMAN CHARLES M. MEEHAN _ WILLIAM H. BORGHESANI, J ROBERT E. T1EHNAN WAYNE V. BLACK DAVID L. HILL MARTIN* W. BERCOV1CI PETER M. NEMKOV JOSEPH E. HADLEY, JR. CAROLE C. HARRIS PETER THOMAS SMITH MICHAEL F. MORROXE LABBY S. SOLOMON JOHN B. DfBECK CHRISTINE A. MEAGHER RECEIVED APR 1 4 1977 Mr. Thomas H. Smith Director of Distribution B. F. Goodrich Chemical Company 6100 Oak Tree Boulevard Cleveland, OH 44131 Re: Standard For Exposure To Vinyl Chloride, Container Marking Requirements Dear Tom: Pursuant to your instructions, we have gone forwarded and submitted to the Occupational Safety & Health Adminis tration of the Department of Labor notification of the neces sary change in the labeling of vinyl chloride in tank cars due to the change in the DOT placarding requirements. A copy of our letter to the Occupational Safety & Health Administration is enclosed herewith. We will additionally forward a similar notice to the State of California, Department of Industrial Relations, with respect to that agency's requirement for the labeling of vinyl chloride. It is our present intent, subject to your further instructions, to defer forwarding this infor mation to the California officials until the middle or latter part of May in order to avoid potentially injecting a new issue into hearings presently being conducted with respect to California's recent law concerning the regulation of carcino genic hazards in the workplace environment. For the information of you and the other members of the industry receiving copies of this letter, let me simply note that Bob Wilson of Stauffer Chemical has advised the Materials Transportation Bureau of the Department of Transportation of SPI-07990 Mr. Thomas H. Smith April 6, 1977 Page Two the intent to locate the label required by OSHA in the vici nity of the manway housing. This request seeks confirmation, already provided verbally, that so labeling VCM tank cars will not be construed to be inconsistent with the DOT hazard label and thus in violation of DOT regulations. Let us further take this opportunity to advise you of a recent decision by the Occupational Safety & Health Review Commission concerning the application of the vinyl chloride standard to low residual monomer content resins. This de cision, a copy of which is also associated with this letter, vacates a citation for failure to moniter where the employer defended on the basis that the amount of VCM released during processing was far below the appropriate threshold limits for further action under the regulation. This decision appears to be clearly analogous with respect to the labeling requirement? however, it is distinguisable inasmuch as the citation oc curred under the emergency temporary standard, rather than the final standard, and further in that the decision does not reach the issue of whether such low residual monomer resin may be considered to be a fabricated product. With respect to the VCM tank car labeling, inasmuch as we have requested neither approval nor acknowledgement from OSHA, I do not contemplate any further follow-up on this matter, barring the agency objecting to the contemplated labeling approach. In the event there is further activity on this matter we will, of course, keep you fully advised. In the meantime, should there be any further questions or comments on the part of you or those receiving copies of this letter, please let us hear from you. cc: PVC/VCM Ad Hoc Study Group SPI-07991 ;:-_v.<v-.-s :&+* t\'A v.-'K'fe' ;Mr 'Cit*&$i *Zk~&i&i rv_4(l6*r Vy*k*5 $b*:srfi* 53% ti :?? ,-A. i^' in*' V*?,.* rvs** ,Vi? tkjft r-^ph , -' -ti Western Eh'ctnc. Inc. A OSHC 20:1 WESTERN ELECTRIC, INC. Review Commission Decision SECRETARY OF LABOR. Complainam V. WESTERN ELECTRIC. INC.. Re spondent. OSAHRC Docket No. 8902. iantlary 24. 1977. Eugene F. DcSIia/o, Kansas City, Mo., lor complainant. Laurel J. McKee. Western Electric, New York. N.Y.. for respondent. Review Commission Judge Paul E. Dixon. Before Bamako. Chairman; Moran and Cleary, Commissioners. CARCINOGENS Vinyl Chloride--Monitoring Require ment 220.04 Employer's decision not to monitor op eration in which solution containing poly vinyl chloride (PVC) was utilized to coat wire coils did not violate monitoring re quirement of emergency temporary stan dard for vinyl chloride. 29 CFR 1910.93q (c)(1). because decision was based on dis covery that only negligible amount of vinyl chloride (VC) was released in another op eration which employer thought was likely to result in higher concentration of VC than coil coating and on employer's under standing of process by which VC is released from PVC. Full Text of Decision BARNAKO. Chairman: The issue in this case is whether Respon dent (Western Electric) violated the moni toring requirement of the emergency temporary standard Tor vinyl chloride.1 Western Electric was cited lor allegedly fail ing to monitor an operation in which a so lution containing polyvinyl chloride was utilized to encapsulate wire coils at its plant in Lee's Summit. Missouri. It defended on the basis that (1) VC was not ''released" during the encapsulation process within 'The icmporarx standard as promulgated on April 5. 19*4. and as codified at 29 C.F.R. Sec. 1910 93q. 39 F.R. 12343 lApnl 5. li,T4i. it uas superseded on Januars J. 19*3 K a permanent standard, now citified at 29 C.F.R. Sec iuu.1t)". 39 F.R. 35>v0 iOv-t 4. 1974). The temporary standard established an exposure limn ot 30 pans per million (ppm). The monitoring provision states as lotions: 1910.93mC) (I) lniti.il HKttitlnring. As soon as possible, but not later ilun April 22. 19*4. even employer ol an employee working in an area or operation m uhiri oml vblonde is manufactured, reacted, handled. processed. rck.iWil. repacked. *r stored shall beein r.*'tn:-rirc the ambient air ct the area to determine *v.t:i-.r n v>nti:n vir.;.i chloride in cunv*en;ratior.v in essvs ! y.) ppm. the meaning ot the standard: and (2) ihe P\'C solution was a "fabricated product and therefore excluded from the standard. Judgc Paul E. Dixon rejected ho;h argu ments and afiirmcd the citation. For tinreasons which fellow. we reverse his deci sion. Vinyl chloride (VC) is a gas ai room temperature. Inhalation of excessive amounts can result in angiosarcoma, a rare form of liver cancer. The discovery of VC's carcinogenic property led to the promulga tion of first the temporary standard, and later the permanent standard. Sec general ly. Society of the Plastics Industry. Inc. v. U S. Department ol Labor. 509 F.2d 1301 |2 OSHC 14961 (2d Cir. 1975). cert, denied, 421 U.S. 992 [.1 OSHC 11951 (1975). Polyvinyl chloride (PVC) is manufac tured from VC. At room temperature. PVC is a plastic found in many common pro ducts. PVC itself presents no inhalation hazard. When PVC is manufactured, how ever. a certain amount of VC gas becomes trapped inside the solid materia'. Some ot this gas escapes at room temperature. The rate of escape accelerates as PVC is heated. The application of heat, howeier. does not cause PVC molecules to change into VC. Thus, the total amount of VC that can be released from a mass of PVC is limited to the amount trapped inside when the PVC was manufactured. Western Electric utilizes PVC in a pro cess whereby wire coils are coated with a layer of insulation. A rectangular tank, approximately 18 by 24 inches in area, contains one to two gallons of a liquid designated Hysol CG7-433I. The liquid consists of 55% line particles of PVC sus pended in a plasticizer. A number of wire coils, shaped like doughnuts and approxi mately one inch in diameter, are heated in an oven to 3b0cF. They arc then immersed in the tank for 20 seconds. After they are removed from the tank, they are heated in the oven for five minutes and then allowed to cool. The tank is covered except when the coils are in it. The coating operation is performed approximately once per month. Western Electric employs approximately 4700 persons at its Lee's Summit plant. Among these are two full-time industrial hygienists. At the time the emergency temporary standard was promulgated, Western Electric had already instituted a company-wide program to determine *Svv*.i>vn I9l0.93qi3ii2> prowdes: Ihix wet ion d<x r. i *ppO the h.. ..iin,:. Mora.-.*. i*r other uve ci uml chloric r*-o r.'.gr* ar.j 4>r'.er in me lorn; r-5 tabr cjic,; d-cis. rr vt 2 T. * r u * !i>.A r-T-.V'^w. - ' vl.*r '"^'4-Li : ^i' v. - 3 . .- '... "- 1/ iwnr-i k * ;-.V' , /' >?: '-I. v , * :,/A- ; - ;. ' > .v i-v; - ; 1 ic. ` --i .r .*- >y.?; ; - -J.T t - -J.* .'viv;lr.'-c.:,. "v>7 7 ; i' J; 4.vyi*> V-' ; /i-. 4--c* v . /. -5. - r ; ' - f P *. , '. i. *.-, s s .; ,-r4 . * ' *''-*xm*** ~ -I** ,,VJ.` y'-'y.'.i : ^ . - -^ -- ySPI-07992 hJ* ja%iv>:'"''" A'','-1' -f ' - 4 OSHC 2022 Western Eivetric. Inc whether VC presented a hazard to any of its employees. It also developed a sophisti cated analytical method to measure the air borne concentration of VC.-1 One of Western Electric's industrial hy gienists. Widner. thought that the emergency temporary standard applied only to opera tions which used VC as a raw material, or used PVC resin to manufacture products of PVC. He concluded that, although Western Electric utilized PVC products in several areas of its plant, it was not sub ject to the standard because it used no raw PVC resin. Nevertheless, he did monitor one operation in the plant to determine the mount of VC released. The operation monitored was one in which sheets of PVC are welded together to make exhaust ducts. Widner thought that, of all the operations in the plant utilizing PVC. this would re sult in the release of the greatest amount of VC. The concentration of VC measured was in the range of several pans per bil lion.'1 This result reinforced Widner's con clusion that the levels of VC in all areas of the plant were well below the level of 50 ppm specified in the standard. Accord ingly. he decided it was unnecessary to monitor the other operations in which PVC is used. On May 31. 1974, the plant was inspected by Complainant's industrial hygienist, who sampled the coil coating operation for VC. Thereafter. Western Electric also took VC samples around the tank. Much of the evi dentiary record is devoted to the analytical procedures used to analyze these samples, and to the results obtained. Both parties challenge the results obtained by the other on various grounds. For our present pur poses, however, the exact concentration is unimportant. It is sufficient to observe that the highest concentration measured by Complainant was 1.7 ppm. or approxi mately one-thirtieth of the 50 ppm limit established by the standard.5 Complainant contends that because some amount of VC. however small is "released," Western Electric violated the standard by ^Western Hlectric's technique used a mass spectrome ter in conjunction with a cas chromatograph. Com plainant's chemist testified that this was tar superior to the method he employed, which utilized only a pas chromatograph. 4One pan per billion is 1/1000 of a pan per million. Thus, the lescl of 50 ppnt specified in (he standard would equal 50.000 pans per billion. 5We also note, however, that this concentrar. -n was measured inside the lip of the tank. Complainant's breathing /one sample yielded nu measurable concen tration when anals/cd with a technique sensitise to 0.3 ppm. \Se also note that Sec. 19l0.93q.c,i3) re* quires that the monitoring procedure only be sensitise to 5 ppm. failing to monitor the coil coating opera tion. In Complainant's vtesv. it is unim portant htnv much VC is in tact released, because this is the very information sought to be obtained by the monitoring require ment. He argues that this interpretation of the standard is suggested by our decision in CAF Corpnraiion. Docket No. 3203. BNA 3 OSHC 1686. CCH OSHD pare. 20.163 (1975), pet. for review filed. No. 76-1028 (D.C. Cir.. jan. 13. 1976). Western Electric points out that any operation involving PVC, even those in which the PVC is at room temperature, results in the "release" of at least a few molecules of VC. It contends that the stan dard was obviously not intended to require monitoring when only a negligible amount of VC is released in a process utilizing PVC. Western Electric argues tha.. since the standard specifies a sensitivity require ment of 5 ppm for the analytical process, it should only be read to apply to concen trations in excess of 5 ppm. We do not entirely agree with either party's suggested interpretation of the stan dard. Complainant would have us read the standard to require monitoring of every operation where VC is released without re gard to whether there is any realistic possi bility that the 50 ppm limit of the standard may be approached. The express purpose of the monitoring requirement, however, is "to determine whether (the ambient air) contains vinyl chloride in excess of 50 ppm." If it can be reliably predicted from the physical circumstances that the con centration of VC will be well below 50 ppm, then formal monitoring wuuld be u useless act, and it is unreasonable to in terpret the standard to require such an act. Furthermore. Complainant's interpreta tion would give a greater scope to the emergency temporary standard than was intended when the standard was promul gated. At that time. Complainant stated in the preamble to the standard: ... It has been decided to promulgate a standard containing only those essential provisions which are deemed necessary to provide protection to employees from grave danger until a regular rulemaking proceeding in accordance with sections 6(b) and (c) of the Act can be con cluded. ... 39 F.R. 12342 (April 5. 1974), (Emphasis supplied).1, ''Pursuant to 29 L'.S.C. See. b55tc). an er-ereerr-. temporary standard to protect emj.loyces fr. m "grasc dancer" may be promuieated without resort to rule- makini; proceedir.es. L:pon promulgation such a temps'rary standard, a rccular rulemaking procecc.r.c leading to the prnmu'cauor of a permancr- stance-.) must be commenced o *.V '"'.'V. V 'V ...' , .v;S:V.'* ; is.aE.fi?- 'V'*'ViVv-x-rV--v v: SPI-07993 's-,'` 'V ftA* ff-f-W . 4.' y h 4 Western Electric. Inc. 4 OSHC 2023 This statement nf the purpose of the standard ^inconsistent with an interpreta tion which applies the standard to even employment situation utilizing PV'C in anv manner except as a ''lubricated product". The standard wax intended to protect em ployees. not to require monitoring tor its ou n sake. On the other hand, it would also be un reasonable to hare the monitoring require ment depend on the existence of a particu lar minimum level of VC. as Western Elec tric urges. We cannot use hindsight to say that monitoring was not required simply because, after monitoring, the concentra tion proves to be below a certain level. The record shows, however, that Western Electric's decision not to monitor the coil coating process was based, not on hind sight. but on foresight. It had monitored one operation which it thought was likely to result in a higher concentration of VC than the coil coating operation. It discov ered that only a negligible amount of VC was released in the welding operation. This result, coupled with Western Electric's understanding of the process by which VC is released from PS'C. strongly suggested that the amount of VC released in the coil coating operation would also be negligible compared to 50 ppm. Nothing in the record casts doubt on the validity of this judgment, or on the good faith with which it was made. Under these circum stances. we cannot conclude that Western Electric violated a standard intended only to protect employees from grave danger. A contrary result is not suggested by our decision in CAF Corporation, supra. That case involved the interpretation of a stan dard which required that medical exami nations be provided to "employees w ho are engaged in occupations exposed to airborne concentrations of asbestos fibers." We rejected the argument that the standard only required medical examinations for employees exposed to concentrations of asbestos exceeding the limits provided in the asbestos standard. Our decision in this case is consistent with that in GAF. In both cases, we have rejected the argument that the require ments of the respective standards only become operative when a particular minimum value of the air contaminant is shown to exist. Furthermore. CAF did not involve the situation in this case, where the concentration of the air contaminant is negligible compared to the limit estab lished by the standard. Western Electric alternatively argues that the Hvsol liquid it used was a "fabri cated product", and therefore exempt from the standard. The emergency temporary standard contains no definition of "fabri cated product." The permanent standard does, however, contain such a definition. Western Electric contends that, under this definition, the Hysol liquid is a fabricated product. Complainant would hate us read the same definition and reach the opposite conclusion. Since we have concluded that Western Electric did not violate the standard, it is not necessary to reach the issue of whether the Hvsol liquid is a fabricated product. We note, however, that it would be anomalous to apply a definition to the emergency temporary standard which was not operative until the temporary standard was superseded. Whether the Hvsol I quid is a "fabricated product" within the defini tion in the permanent standard can only appropriately be determined in a case aris ing under that standard. Accordingly, the Judge's decision is re versed and the citation is vacated. Concurring Opinion MORAN, Commissioner, concurring: 1 agree with the lead opinion except that I disassociate myself from its discussion of Secretary v. CAF Corporation. OSAHRC Docket No. 3203 [3 OSHC 1686], Novem ber 14, 1975. Dissenting Opinion CLEARY. Commissioner, dissenting: The majority's interpretation of the stan dard at issue in this case is contrary to its clear meaning. Moreover, in reaching their erroneous reading of the standard my col leagues have ignored precedent limiting this Commission's role in the interpretation of an occupational safety and health stan dard. In pertinent pan, the initial monitoring requirement of the emergency temporary standard for vinyl chloride is as follow s: Sec. 1910.93q Vinyl chloride. *** (c) Monitoring. (1) Initial monitoring. As soon as possible, but not later than April 22. 1974, every employ- '^C.F.R. Sec. I9l0.101*tb) provides: Fabricated product means a product made wholls or paniy irom polyvinyl chloride. and which does not require tunner processing at temperatures and for tirr.es. sufficient to cause mass melting of the polsvsnvl chloride resulting in the release of vinyl chloride. WF > vy .'.Vs-,* k- " [;v i i ` 1` t .r tv k Jv. . ,7 ^. *> x ,,;.v iA yty a * .* *- Ti. il K K* "* * - -w, *.<., SPI-07994 t &1 & Vw' rtcr A '4. - u5j::: -- ' J . t-. ->-**- -1 ' ' vSA&'-rn*. \ -- *" x. _' * :*Ji_r?'*V ` ?. ti in . *> ?, v* * ***-' ' - v'-` v-v: :'-V-' *: r >* ;*- *4 '. 3Ei: & .*; - *\-`. *r- '"S7S : r W--\ ' . -j /.-7;.: -vs.**.-Wt-c i v.".- . /.< ;'.' >L*r.fi?-. ' *-3te r* a*r*';** v-,,; .V V *> \r s r * v.'-' '/- >;,.. . a - * 4 V'vT* \ 4 OSHC 2024 Western Electric, h:c. cr of an employee working in an area or operation in which vinyl chloride is . . . released . . . shall begin monitoring the ambient air of the area to determine w hether it contains vinyl chloride in concen trations in excess of 50 ppm. By its terms the standard requires monitor ing of employee exposure levels in every operation in which any vinyl chloride is released. The majority, however, reads differ ently this unequivocal language. My col leagues would not require monitoring even if vinyl chloride is released **l i if it can be reliably predicted from the physical cir cumstances that the concentration of VC will be well below 50 ppm. . . This is in error. 1 submit that this monitoring standard is by its scry nature intended to supplant "reliable predictions." No matter how meticulously it is performed a "reliable prediction'' cannot be considered as an ac ceptable alternative to physically monitor ing ambient air levels in areas where viny l chloride is released. Simple logic does not support the majority's action. Moreover, the wording of the standard itself is not amenable to the strained "interpretation" announced in the lead opinion. Vinyl chloride poses an extremely grave health hazard to thousands of work ers. Inhalation of vinyl chloride has been linked to angiosarcoma of rhe liver, an ex tremely rare and irreversible cancer. So- a'en ofPinnies Industries. Inc. v. O.S.H.A.. 509 F.2d 1301. 1306 |2 OSHC 1-496) (2d Cir. 1975). ccrt. denied. 421 U.S. 992 [3 OSHC I195| (1975). The deleterious con sequences of employee exposure to vinyl chloride mandate the need for reliable measures of exposure levels in operations where vinyl chloride is released. The Secretary of Labor plainly recog nized this fact when he adopted a standard that required monitoring of work environ ments where any vinyl chloride gas is re leased.8 Nevertheless, the majority has 8ln attempting to reject complainant's readin-a ot (he standard the lead opinion su^cests that complainim'y interpretation would pivc ptxaier scope to the standard ihan wav originally intended. Cited in support oi this proposition iv language Imm the standard** pre amble noting the standard's intent to protect employees from "grave danger." The Chairman apparently iv reading the phrase "grave danger" as sarnie lorni ot limitation upon the monitoring requirement. This is error in my opinion. The Secretaries use of the phrase "grave dancer" should be considered onlv in the manner it was in tended, namely as a simple relcrcnee to the grave consequences of sirs I chloride exposure. It was never intended as limning the duty to phssualiv monitor t> ignored the Secretary's approach u> this grave problem and has. in effect, substi tuted its own monitoring standard. Bv doing so my colleagues arc piainlv ques tioning the wisdom of the Mandat'd." This Commission has consistently held that it lacks the requisite authority to q.tes-ion the wisdom ot standards. \\,n k.mlte C.n. Inc.. 4 BN A ObHC I If J. l^`5-o CCH OSHD para. 2t).o33 (No. 5fXT. iv'o) and authorities cited therein.10 Finally, even if 1 were to assume that the unequivocal language of the standard per mits the latitude of interpretation presumed in the lead opinion, the majority errs when it rejects the Secretary's interpretation. As the adopting agency, the Secretary 's inter pretation is entitled to great weight. Indeed, as noted by the Fifth Circuit "|Tjhe promulgator's interpretation is controlling as long as it is or.e ot several reasonable interpretations, although it may not appear as reasonable as some other. Brennun v. Sunt hern Controciurs Serai e. 492 F.2d 405. 501 (1 OSHC lb-h\ (5th Cir. !9"4) (cites omitted). In my opinion the interpretation urged by the Secretary is the wily reasonable interpretation of the standard at issue in this case. The majority errs when it rejects the reasonable interre lation of the standard urged by the Secre tary. 1 would adopt the Secretary's reading which would require initial monitoring in work environments where any amount of vinyl chloride is released. My colleagues' reading of the standard is contrary to its terms and relegates determinations of em ployee exposure to this extremely harmful substance to educated guesswork. Further, if Western Electric believes that its techniques are superior to those of the standard it has recourse to the variance only ihostf situatt.tns where exposure levels c! bj . '* 50 ppm cannot hi "rejiably predicted Jrv.m ire phxs.ca'. circumstances." *Thc lead opinion suggests that the Secretary's v.-rv-'n of the standard miyht require formal n*omi<-nne ihui mii:hi latci prove to be a "useless act." I submit th.it forma! momtorim* that discloses statisticj!!\ lnsicr..!'cant exposure levels cannot properly be cmns.J.red a "useless act" if it supplants a "re. in Me prx\1;<.ti> that il in prror might lead to a useless c.ath of an affected employee. ^Moreover. 1 submit that the prasti.-al o'tv.i ot the majority\ Soidiii*; is to undermine and rcjcci determi nations made bv the Secretary n pror.Hi.u.tttnc the standard in question as an emerjyertcy empor;rs stan dard under the terms nt 29 L.S.C See. -s such, mi c"Hc.icues ure implicitly quest r.tr.c tf'e dciernmutw>n' . . IA> Ih.st emplv*\<es arc Cvp'-wC * grave danger from exposure to suhsi^nccs .r agents dcternuneil i Ik tovic or piiystcali. ham;:'..; r ; > :.i new lu/jrdv ami (B) that such cmcr^encv .is necess.irs tt> prvtect en.p!`vces from such d-j.^cr.* L.S.C. Sv. of c vi,. :1^7. .U. e ^ ... i f K . v* 8 ? i~rm 7i ' r H' ' ' '.-v/ ; .-y >' `v V:1 Air . '^1 < V *- vt;.' ; Mvrrirt - Meridian Corporation 4 OSHC 2025 procedures under the Act published in 29 Respondent was cited for five safety vio CFR l'.:n 1905 in order to obtain partic lations under the Occupational Safety and ularized relic!. The majority's action makes Health Act while engaged on school con unnecessary the use of this avenue by pro struction in Wallkill. New York. The viding general relief under a general test of Secretary proposed a total penalty of S105 reasonableness that has possible harmful for the violations. A signed return receipt implications tar beyond the contours of of the notice of proposed penalty was post this case. marked on April 24. 1976. In sum. there was no dispute that some Respondent had an informal conference quantity of vinyl chloride was released into in the Secretary's area office on May 11. the work environment during respondent's 1976. At the conference respondent orally coating operation. Inasmuch as the evi informed the Secretary's representative of dence showed that respondent had not its intent to contest. This oral notice was monitored the ambient air'in accordance within the fifteen working-day period per with the standard's requirements, a failure mitted by section 10(a) of the Act' for to complv with 29 CFR Sec. 19l0.93q(c)l I) giving notice of a contest. However, be was shown. 1 would not. therefore, disturb cause of clerical error respondent's written Judge Dixon's decision affirming the cita notice of contest was not filed until June 1. tion. Rather. I would adopt his disposition 1976. The June 1 date is beyond the 15 of the issue noted above and all other issues working-day period permitted by section in the direction for review. 1 Ova) of the Act for giving notice of contest. The issue before us is whether the oral notice to the Secretary's representative on May 11 is sufficient to meet the statutory MERRITT-MERIDIAN CORPORA TION Review Commission Decision requirement for a notice of contest. A divided Commission has reversed the precedent represented bv American Air lines. Inc.. 13 OSAHRC 99. 2 BNA OSHC SECRETARY OF LABOR. Complain ant v. MERRITT-MERIDIAN COR PORATION. Respondent. OSAHRC Docket No. 76-246'1. January 21. 1977. Francis V. LaRuffa. Regional Solicitor. New York. N.Y., for complainant. Dennis Paise, Construction Employees of the Hudson Valley. Newburgh. N.Y., for respondent. Review Commission Judge Abraham M. Gold. Before Bamako, Chairman; Moran and Cleary. Commissioners. 1320. CCH OSHD para. 18.908 (No. 4532. 1974) and held that a timely oral notice of contest may be permissible of section 10(a) under limited circumstances. In Wood Products Co.. 4 BNA OSHC 16S8, 1689. CCH 1976-77 OSHD para. 21.097, p. 25.396 (No. 9206. 1976), the Commission by divided vote held that an oral notice of contest for an employer appearing pro se was permissible when the employer had been confused by the events involved and misunderstanding resulting from communi cations with the Secretan's area director. In P & M Sales. Inc.. 4 BNA OSHC 1158. NOTICE OF CONTEST Timeliness--Excuse for Delay 55.101 CCH 1975-76 OSHD para. 20.673 (No. 3443. 1976), the Commission again by divided vote held that a filing of a written Employer's filing of written notice of notice of contest as to the penalty and an contest I" days after expiration of statutory oral notice of contest concerning the cita * i contest period is not excused by "clerical tion was sufficient notice concerning the error." and. despite fact that employer citation under the facts of the case. r5 gave timely oral notification of intent to contest citation, such untimely notice of contest must be dismissed. Svvimn KVa' rerds v -*v II . . . the Secretary issue1* a citation . . he shaP Full Text of Decision . . . notiis the employer bs ccnilivd m:ul *t tl penalty, if an\. proposed to bv assessed . . . aiu. CLEARY. Commissioner: that the employer f as fifteen *orktne 1jvs within which to notifs the Secretary that he wishes to con On July 21. 1976. Judge Gold granted the Secretary of Labor's motion to dismiss test the ci*ati.*n or prop<*scd assessment oi penults. It. within fifteen working days Iron the receipt ! the noTet- issue! bv the Secretary the employer tails respondent employer's notice of contest for no' being timely filed. The case is before us on orders for review by the Chairman and Commtss'oner Moran. to nottts the Secretary that he intend* to contest the citation or proposrri assessment ot petults . the cf.ition ami 'he assessment, as p*nm*\ed. shall f*e deemc.' a fmul order ol the Commission ar,d not Mih,.-v.t t<* review *-. any court or auer.es. ^JOSEPH F-. KELLER JCROMl II. HECKMAN CHARLES M. MrrilAN -- WILLIAM H. DOKOIirSAM. JR. ROBERT I?. T1EHNAN V.\YXK V. BLACK DAVID I.. HILL MARTIN V. DEKCOV1CJ PET EH M. Nt.MKOV JOSEPH r. HADLEY, JR. CAROLE C. HARRIS PETER THOMAS SMI Til MICHAEL E. MORBONE IAJ?RY S. SOLOMON JOHN D. DUBECK CHRISTINE A. MEAGHER law orncKs Kklleh axd Hf.ckman lino irr" STREET. N. w. SUITE IOOO WASHINGTON. D. C. 20000 April 5, 1977 TELEPHONE 205? 457-1)00 catji.e Annm;ss "xi;i.man" WRITEHS DIRECT DIAL NIMBI R (202) 457-1144 Dr. Eula Bingham Assistant Secretary of Labor Occupational Safety & Health Administration U.S. Department of Labor 3rd & Constitution Avenue, N.W. Room S-2315 Washington, D. C. 20210 Re: Standard For Exposure To Vinyl Chloride, Container Marking Requirements--Vinyl Chloride Tank Cars Dear Dr. Bingham The purpose of this letter is to advise you of a change in the labeling program implemented to comply with Section 1910.1017 (1) (5) of the regulations of the Occupational Safety St Health Administration, as that program concerns vinyl chlo ride being transported in tank cars. This notification, on behalf of the Committee on Distribution of the Society of the Plastics Industry, Inc., will serve to follow-up on prior cor respondence with the Occupational Safety and Health Adminis tration concerning the requisite labeling, both for your records and for such dissemination to the field staff as may be appropriate. Responsive to the adoption by the Occupational Safety s. Health Administration of its Standard For Exposure To Vinyl Chloride V, the SPI Committee on Distribution developed a labeling program for use by its vinyl chloride and polyvinyl chloride producer members for implementation of the container */ 39 Fed. Reg. 35890 (1974). SPI-07997 Dr . Eula Bingham April 5, 1977 Page Two labeling requirements set forth in the Standard as those re quirements pertained to the transportation of said materials. The labeling program, and the basis for its development, were described in a letter from the undersigned addressed to Assistant Secretary of Labor Stender dated March 31, 1975. In a response dated April 28, 1975 Assistant Secretary Stender advised that the labeling program would satisfy the require ments of the Standard. As set forth in our letter of March 31, 1975, with the concurrence of the Federal Railroad Administration of the Department of Transportation, the "Cancer-Suspect Agent" legend was placed on the "DANGEROUS" placard mandated by the regulations of DOT. By virtue of rule changes recently adopted by the Materials Transportation Bureau of the Depart ment of Transportation, effective July 1, 1977 the placard to be employed for tank car shipments of vinyl chloride will be changed to bear the legend "FLAMMABLE GAS" in lieu of "DANGEROUS". **/ Due to this change in the DOT placarding requirements,"it will no longer be feasible or permissible to utilize the DOT placard for the placement of the OSHA--required legend. It is generally the position of the vinyl chloride shippers that the preferred replacement location for the OSHA required label is the manway protective housing. Thus, the label will be placed in the vicinity of the liquid line con nections, the point of potential contact with the material in the tank car. An Exhibit showing the label and locations generally contemplated by the industry is associated with this letter . As heretofore noted, the use of the new "FLAMMABLE GAS" placard required by the Department of Transportation becomes mandatory on July 1, 1977. Accordingly, we understand that members of the industry have begun marking their tank cars in **/ Department of Transportation Dockets HM-103 and HM-112, 3T Fed. Reg. 15993 and 41 Fed. Reg 38179 (1976). SPI-07998 Dr. Eula Bingham April 5, 1377 Page Three accordance with the foregoing approach in order to assure com pliance with both the DOT and OSHA regulations when the new placarding requirement becomes effective. Should there be any questions or requirement for further information concerning the foregoing matter, please feel free to communicate with the undersigned. Ve:ry trrut ly yours Assistant General Counsel THE SOCIETY OF THE PLASTICS INDUSTRY, INC. SPI-07999 SPI-08000