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Js''to : nianuf.-icfi/rer'iand.
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1 vC and to fabricators of PVC, but excludes those mprely handling or
u-.j.sg ilready-fabricated products. 29 C.F.R. 1910. 93q (a)(2),
(2) In place of the potentially obscure "no detectable level"
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standard^permissible exposure limit not greater than l ppm averaged
over t.n eight-hour period is set, but allows for peakj of VCKf
exposure up to 5 ppm during periods^ not exceeding 15 minutes. 29
C.F.F.; 19l0.93q(c);-,
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, (3) All employes^ are required to conduct an initial program
of monitoring and measurement of exposure levels, but need not
continue monitoring if initial levels are below the so-called "action flh
level" of Q, 5 ^pm averaged over the eight-hour work day, 29 C.F.R.
1910. 93q (d).
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(4) The standard requires that "feasible engineering and
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work practice controls" be employed to reduce exposure below the
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permissible exposure wherever possible or to the lowest practicable
level if not possible, supplemented by respiratory protection. 29
C.F.R. 1910.93q(f)(2).
(5) Where respiratory protection is required under the standard,
suitable equpment, as indicated by a chart in the standard, shall be
provided, and use shall be required of employees unless the VCM
level is below 25 ppm measured over any 15 minute period, in which
case the use of respiratory equipment is optional with the employee
until January 1, 1976, 29 C.F.R. 1910.93q(g)(l).
(6) Employees working in certain hazardous operations,
especially those involved in physically cleaning the interiors of PVC
manufacturing rcactorB, shall be provided protective garments and
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employees exposed to VCKl m uxt L- b
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29 C. F.R, 1910. 93 q (k).
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. (8) Finally, in addition to certain record-keeping require-
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mentn, all entrances, work-areas, and containers related to 'VCM
or PVC manufacture and PVC fabrication are required to bo labelled
with the warning legend: `"Cancer-Suspect Agent",
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* IV. PETITIONERS1 CONTENTIONS
29 C. F, R. 1910. 93q{l),
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(a)
Petitioner's initial claim is that the available scientific and
medical evidence does not establish that the l ppm exposure level
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adopted by the Secretary is required by health or safety considerations. .
They claim that no proof exists in the record to justify such a low
standard, since all of the medical witnesses testified that no qne can
say whether exposure to VCM at low levels was safe or unsafe.
Further, they point to studies 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, j
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We find, however, that thv evidence is quite sufficient to i
warrant the Secretary's choice. First, it must be remembered that w
are dealing here with human lives, land the record reveals that ll manu
facturing plant workers and two fabrication plant workers have already died from the effects of this poterj chemical. Moreover, the animal
exposure study,
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sponsored by MC f, the industry's own trade association.
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UCC 092784
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Certainly. thetas is tittle margin for-, safety r-x,:.* 1
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, - v Ji.;Wove thU compound a non-care}nogefc, then to. - V-vlv i'
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V/`Vu.^atabUph a tolerance or safe level, there would ' `Vv `
i v! . ,``have '\a be a 103 to 1 margin of safety la term*
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: ` ; ' , '^XA-S. jyt* Trudytatria-t Union Department, AFL-CIO-y.v Hodgson,
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aupra, the ultimate, facts, here in dispute are "on the' frontiers of ? ' 'i
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scientific, Imbwledge",. and, though the factual finger points, |t does k ". * , 'A''f\ ) . v', 1 ' . H .- .- `t `i1 i\' ..I . ,_ -... . * ; _ , 1
, rot conclude, , Under the command oi OSHA, it remain* the duty of th<
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. ' Secretary td act fp protect the workingman, and to act even, in circurr.-
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f ''tances wHere existing methodology or research is deficient. . The
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SecrctaryV in extrapolating the MCA study's finding from mouse to mat.,
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has chosen to'redupe the permissible level to the lowest, delectable one,
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; We /Ind'noj ^rror. ih.this keapept. ;* ^ I'
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; UCC 092785
*Failing in this contention, petitioners strongly urge that
the Secretary. breached his statutory mandate to insure that the
standard ^elected is a "feasible" one,--- Relying on the so-called
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Snell Report, /--4 , petitioners claim that VCM and PVC manufacturers
will nevor.be able to reduce levels of exposure to l ppm through
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engineering means. They point to the conclusion reached by the
Snell Report thatj
The costs of compliance increase rapidly 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 TV/A for the PVC industry.
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 from 7.4l.lb, at present
to 7.69^/lb, at a target level of 2-5 ppm TWA, but would supposedly
soar to 12,?l/lb, at the "no-detectable" level.
In his statement of reasons in support of the standard, the
Assistant Secretary acknowledged the industry contention and the Snell
conclusion about the infeasibility of the 1 ppm level, but noted that:
"Labor union spokesmen and the Health Research Group. Inc. , however,
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have suggested that such a level is attainable. " The Assistant Secretary
went on to say:
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' Since there la no actua^ evidcpcq thyt any
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attained a l ppm level or ip fact instituted all avail' *
able engineering and work practice control?, any
estimate aa to tho lowest feasible level attainably
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must necessarily involve subjective judgment.
Likewise, the projections of industry, labor, and t '
others concerning feasibility are essentially
conjectural. Indeed, as Firestone has suggested,
it is not possible ^to accurately predict the degree
of improvement "to be obtained from engineering
, changes until such changes are actually implemented. a
We agree that the PVC and VC establishments
will not be able to attain a 1 ppm TWA level for.all job classifications in the near future. We do believe, " however, that they will, in time, be able to attain levels of l ppm TWA for most job classifications . moat of the lime. It is apparent that reaching such levels may require some new technology and work ` ` practices.' ft may also be necessary to utilise r;' ttchmlogy presently used in other industries. In \ imy event the VC and PVC industries have already mGf; great strides in reducing exposure levels. (See testimony of Dow Chemical Co. , Til 973). For example, B. F. Goodrich testified (TR 1120) that it has reduce average exposure levels in Beverat PVC plants from 35-40 ppm early this year t , to 12-13 ppm at tho time of the hearing. We are confident that industry will continue to do so,
[39 Fed. Reg. at' 35892. ]
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\ jWfc, cannot agrp 'witty petitionefs that the standard is so
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clearly impossible of attainment., It. appears that they simply need more
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faith in theiif o>vn technological potentialities, since the record reveals
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that, despite similar predictions of impossibility regarding the
iJ emcrgsnpy 50 ppm standard, vast improvements were made in a matter
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of weeks, and a variety of useful engineering and work practice controls
have yet to be instituted. In the area of safety, we wiBh to emphasize.
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! the Secretary is not restricted by the status quo, v He may rai&ft
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standards which require improvements in existing technologies or
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I which require the development of new technology, and he is not limited
' to issuing standards based solely on devices already fully developed.
Cf. Chrysler Corp. v. Dept, of Transportation, 472 F. 2d 669, 673
(6th Cir. 1972); Natural Resources Defense Council, Inc, v, E. P. A.
. 469 P. 24 390, 401 (5th Cir. 1971). j There Is much testimony in the record, especially la the
fine It Report, indicating that VCM concentration can be easily pinpointed
. and largely corrected. For example, many of the companies engaged in
PVC manufacture still perform the cleaning of batch reactors by opening
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, less hazardous methods are
currently available and in use, in which the vessels are cleaned by
machinery, emulsions or simply water under high pressure. Other
source's of exposure are encountered in filling tank cars, measuring,
testing and repairing pipe joints or other connections.
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Indicates that much of this may be alleviated.
The Snell Report
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feasible, but, .fnore importantly, he requires that, In addition, respiratory
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protection b used If engineering mean* cannot bring the VCM level
down to th permissible limit.
be sure, respirators have their drawbacks. .These problem*
were detailed at the hearings and recognized by the Assistant Secretary.
Self-contained and air-hose^ type breathing equipment is bulky, expensive.
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and infeasible for full-time use, as well as potentially hazardous in
term* of tripping, restricted mobility, and over-exhaustion of workers, 1
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But die fact remains that they effectively eliminate exposure to VCM,` \ . ' i /" *; r
and they are already being used by some PVC companies in the cleaning
process and at other points in production with good success.
Like the industry's claims about the impossibility of achieving *
compliance through technological means, petitioners* claims of dire
consequences from the requirement 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, lightw ight,
inexpensive cartridge or cannister-type respirators, which can effectively
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filter out VCM at low levels, are now available and acceptable. Contrary
to petitioners' assertions, the Snell Report indicates that a variety of
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respirators are reasonably available.
c. We find that the Secretary's directions are clear, definite,
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and certain and that they are also entirely feasible, since the goal of
the lowest detectable level can definitely be attained through the
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combination f technological means and respirators, Our eb/jeluajon
in this regard is buttressed by the fact that only some 6,500 of the
workers coming under the standard -- those in *h* VCM and PVC
manufacturics field -- are potentially
exposed to high or constant
VCM concentration, and only a email percentage of them are actually
subject to excessive concentration of the chemical during manufacture.
Thu remaining hundreds of thousands of workers are in' the fabrication .
field where exposure i3 already aa low that some of the petitioners .
claim tbxrt the fa.briera.tor3 should not even be under the standard;
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these, of course, have heen included because of their work with PVC
resin which in final form contains residual amounts of VCM, arid the ' '
record shows that two deaths have in fact occurred among fabricators,
If. in the future, the monitoring under the standard indlca-^
that thu VCM level among fabricators is sufficiently low and that1 -fee
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sporadic, unpredictable exposure of these workers to reid?jal VCM.
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been controlled, the fabricators might well be excluded or included
a separate, less rigorous standard. Certainly if PVC producers were able to eliminate all residual VCM from the resin before it is delivered
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to *he fabricator, there would .seem to be no reason for their inrlualn.
But this would be for the Secretary to decide on tt proprlafe appHeatitn
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or on his owr motion, and, as the rciord present'., stands, their
inclubi.cn is .rvtply just'iied.
la any event, oir.pt lance s ;:mo-phascd and, if the petitv: r.ers
find that Hb>' -annut t cmaly for /easomi beyond * M-ir control, OSHA
permits the amendment of 'itanq&pds, Sot; `9 U.i.-S. Il655fb)f6)(A).
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Upon appltczr.cn and sufficient proof < i -,uch a si'-is-tion, we feel certi.n
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that the, petitioners would obtain relief at the hands of the Secretary.
This iff especially true of the "cancer suspect agent11 labelling
requirements which petitioners urge are beyond statutory contemplation.
We think that'the Secretary .is simply "fighting fire with fire" and using
tho labels to bring the danger of vinyl chloride forcibly to the attention l
of the workers. Cf. Synthetic Organic Chemical Mfrs, Assn, v.
Brennan. 503 ". 2d 1155 (3^ Cir. 1974). They deserve no lesff
treatment. We have also considered the other arguments of the
petitioners and f,
tenable.
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It is our conclusion that the challenged aspects of, the
Secretary's vinyl chloride standard are supported by substantial
evidence in the record and that the petitions for review must be deni d.
Taking into account the delay occasioned by these petitions, we think
that a reasonable "lead time" is appropriate and therefore order that
the Secretary's regulations, rather than being effective January l, 1975.
shall become effective sixty days after the date of this order and that
the time requirement as to respiratory protection contained in 29 C.F.R.
1910. 93q(g)(l) is re-scheduled accordingly.
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