Document jmeY3GQ9OaNErMR81OpopBV6y

$7M 1482 OCCUPATIONAL SAFETY & HEALTH REPORTER Union Viewpoint The urethane proecss involves more than exposure to isocyanates, according to Louis C. Delic/ky. director of industrial hygiene. United Rubber. Cork, Linoleum and Plastic Workers of America. Akron, Ohio. Dclie/sky said severe skin problems, not necessarily from TDI. may occur from isocyanate use as well as fire hazards when spray guns are used without being properly grounded. He briefly outlined union efforts to educate workers in the urethane industry through workshops on the hazards of using isocyanates, and noted that workers are urged to cooperate with medical testing. He urged medical direc tors to inform employees of sensitivity testing results. Short duration techniques for air sampling arc ineffec tive considering peak situations and excursions 10 to 20 times acceptable TWA levels, he added. Temperatures of isocyanates must be taken into ac count for any calculation of partial vapor pressure of TDI. according to H. Karl Frcnsdorff. research chemist, elastomer chemicals department. E.I. DuPont de Nemours and Company. Wilmington. Del. As the polymerization process proceeds, diffusion of molecules that must react is slow, leaving free TDI pre sent for a finite time, he added. -p j^ Litigation fi/lefn I ( CA-DC DENIES PETITION FOR REVIEW Or ASBESTOS STANDARD; REMANDS TWO ISSUES A petition for review of the Secretary of Labor's stan dard for exposure to asbestos dust, filed by the industrial Union Department. AFL-CIO. was denied, with the ex ception of two issues, by the U.S. Court of Appeals for the District of Columbia. The opinion in Industrial Union Department. AFL-CIO v. Hodgson (No. 72-1713), filed April 15. was written by Circuit Judge Carl McGowan. The En vironmental Defense fund. Inc., was an intervenor in the suit. The standards in question regulate the atmospheric concentrations of asbestos dust in industrial workplaces. The petitioners, unions whose members are affected by the health hazards of asbestos dust, challenged the timetable established by the standards for the achieve ment of permissible levels of concentration, and objected to portions of the standards concerning methods of com pliance. monitoring intervals and techniques, cautionary labels and notices, and medical examinations and records. Two of the issues raised by the petitioners, the uniform application of the 1976 effective dale for the Secretary's two liber asbestos standard and the three year retention period for records of exposure levels detected by monitoring, were remanded to the Secretary for further consideration. In all other respects, the peti tion was denied. Before considering the specific challenges made to the Secretary's action, the court addressed the subject of the reach of the substantial evidence test in the course of judicial review. When the Secretary's proposed standards re challenged, the court is entitled to a careful identifica tion by the Secretary of the reasons why he chooses to follow one course rather than another. Where that choice purports to be based on the existence of certain deter minable facts, the Secretary must find those facts from evidence in the record, the court said' By the same token, the court added, when the Secretary is obliged 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 to be persuasive. The court addressed itself to two further problems raid ed by the petitioners involving statutory construction. The ILiD contended the determinations of the National Institute for Occupational Safety and Health (NIOSH) are meant to be conclusive on the question of what ex posure levels adequately protect health. The court dis agreed. stating that the NIOSH recommendation was undoubtedly important in the eyes of Congress, but was intended as no more than that. The second problem rais ed by the IUD related to whether the Secretary may take economic considerations into account in promulgating a standard. The Secretary explained his decision to delay, two years longer than the period suggested by NIOSH. a tougher standard as "necessary to allow employers to make the needed1 changes for coming into compliance." According to the court, the factors entering into the Secretary's conclusion could properly include problems of economic feasibility. In remanding the issue of uniform application of the 1976 effective dale for the two liber standard, the court suggested that the task of devising categories and classifying employers by industry may be unmanageable in view of the many diverse uses of asbestos. However, the court pointed out. there was no evidence to that effect in the record, and it is not for the court to guess at the Secretary's reasoning or to supply justification for his ac tion. Accordingly, this aspect of the standards was remanded to the Secretary for clarification or recon sideration. With regard to the three-year retention period for monitoring records, the court objected to the Secretary's failure to explain his decision to require such a short period. In addition, the court found no adequate assurance in the record that the requirement as promulgated will provide the data needed for research into the causes and prevention of asbestos related disease. Therefore, the court remanded the recordkeeping re quirements to the Secretary for such modification or clarification as may be necessary to insure that the statutory objectives will be fulfilled. In the court's view, what differentiates the two remanded provisions front those left untouched is that the record, examined closely in relation to the relevant concerns of the Act, leaves nagging questions as to the reason and rationale for the Secretary's particular choices. Portions of the standards concerning methods of com pliance. monitoring intervals and techniques, cautionary labels and notices, and medical examinations and records, all of which were challenged by the IUD, were left intact by the court. OtWtilMd Safety 4 Haalth Raooitar KMX 01833