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;v t m*A -. ~"Dr~ ) >-- - - r,-..---jnt-. - jC3*W '^y*^ '"^"eSsS-'v l" *5^* V/ . X- f k a ~i7-/^7JmJr Q, 111 (*,i. i s&?.<`- !i!."\i', '> . v '>:* `'' - v.;j'I ?k. ' ' 'v , , 'A* i r* " ^ 1 t:v 4 f'<>f * * * -4 '****/, , _. * i ' ,, *M.-j 5V) * /..' ,'. '**'L- ;;?_L1'L'll' -.^`iU-Vtr* t/k' ^ `r - ' ' -T: >v> *,<"ijTW;> ' /v>m~ j^P*~y/-vTt. -' : - i .^ '*VYlj ' IJVTT^/^'hV^V ' ^Xv!.'* i'i /ji# ' ; . `, ` , .. iist'i,r-'`?L\- v ^i^^ryrrrr -'<. '.,...'. ' -'r t- <bx i-*El- :QX7x:-' &y. ." <&*^fca- -v`;. . H/aUft&t f<T. A^ytyrirryrc, j.y jftlfcg} i )ir i^sfJ ' ' ,`` '/-^-kv...... 'M'7 \, i ;;. ^:s - ;"i >*'.* >:t: >.*-,; . /f: :.'..';:' .;' : - ^ .-.a* ~I II *_>* rTjl4 'J ,,v.:'-'/:^/'>. 1';`*`^/'f'-','.!\^TV, r(1;Vy,'( >1->t1 `, ' .<43 GENC 009640 TABLE OP CONTENTS Preliminary Statement................................................................. Statement of the Issues Presented..................................... Statement of the Case................................................................... SUMMARY OF THE ARGUMENT......................................................... Argument I. To Be Sustained in the Promulgation of a Standabd Such as the One Hebe in Issue, the Secbetaby of Labob Must Develop a Becobd, . Cabefully Elucidate Findings Based on the Becobd, and Beach Conclusions That Besult in a Standabd Which Is Feasible ; His Failube To Meet These Basic Bequieements in This Case Make the Pbomulgation of the Standabd Unlawful and Invalid.................................................... II. The Becobd Being Devoid of a Scintilla of Evi Todence Support the Technological Feasibil ity of Achieving the Exposure Limits in the Vinyl Chlobide Standard, the Beal Effect of Adoption of the Standard Will Be To Compel Full-Time Use of Eespiratoby Protection by the Work Force; the Only Evidence of Bec obd Indicates That This Besult Will Make Safe Plant Operation Technologically In feasible and Be Detrimental to Employee Health ....................................................................................... HI. The Becobd as a Whole Does Not Contain Sub stantial Evidence To Justify Application of the Standard to Fabbicatobs ob Processors of PVC Besin, Many of Which Would Find It Economically Infeasible To Comply.................... IV. The Vinyl Chloride Standard Is So Vague and Indefinite That It Violates the Constitu tional Bight To Due Process and Fails To Comply With the Bequirements of the Act .. ii Table of Contents Cont^^^^^^^ Page V. The Vinyl Chloeide Labeling Requirements Fail To Comply With the Requirements op the Occupational Safety and Health Act and Aee, Therefore, Unlawful.......... .". 37 A. The Secketaby Exceeded His Statutory Au thority in That the Labeling Which Would Be Required by the Standard Does Not Ade quately Inform Employees as Required by the Occupational Safety and Health Act . 37 B. The Secretary Exceeded Hth Statutory Au thority and Illegally Usurped That of An other Federal Department by Adopting the Labeling Provisions inthe Standard......... 41 VI. Conclusion............................................................... 43 Appendix A--Statutes and Regulations...................... la Appendix B--"Petition fob Stay of Effective Date of Standard" ............................................................. 28a TABLE OF CITATIONS Cases: Ashton v. Kentucky, 384 U.S. 195 (1966) .................... 33 Associated Edison Co. v. NLRB, 305 U.S. 197 (1938) 14 *Associated Industries of New York State, Inc. v. United States Dep't of Labor, 487 F.2d 342 ( 2d Cir. 1973) ........................_................ ....11,13,21,33,36 Automotive Parts Accessories Association v. Boyd, 407 F.2d 330 (D.C. Cir. 1968) ................................ 21 *Chrysler Corp. v. Dep't of Transportation, 472 F.2d 659 (6th Cir. 1972) .............. 35 Connolly v. General Construction Co., 259 U.S. 385 (1925) ..................................... 32 Florida Peach Growers Association Inc. v. United States Dep't of Labor, 489 F.2d 120 (5th Cir. 1974) ............................................................................ 13 Cases or authorities chiefly relied on are marked by asterisks. Table of Contents Continued iil Page Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ......... 32, 33 *Indu$trial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974) ...................11,16,17,33,38 Kraus & Bros. v. United States, 382 U.S. 399 (1966) .32, 33 National Realty & Construction Co. Inc. v. Occupa tional Safety and Health Review Commission, 489 F.2d 1257 (4th Cir. 1973) ...................................... 13 NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292 (1938) ........................................................ 14 *Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973) ................................................ 35 Stromberg v. California, 283 U.S. 359 (1931) ........... 33 Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) 14 United States v. L, Cohen Grocery Co., 255 U.S. 81 (1921) ................ 32 United States v.. National Dairy Products Corp., 372 U.S. 29 (1963) .......................................................... 33 Statutes -. U.S. Constitution, 5th Amendment Occupational Safety and Health Act 29 U.S.C. 653(b)(1) ............. 29 U.S.C. 654(a) (1) ............. 29 U.S.C. |655(b)(5) ............. 29 U.S.C. 655(b) (7) ............. 29 U.S.C. 655(f) ................... 29 U.S.C. 666 ........................ 31 ........... 12, 41 ............... 6 11, 13, 15, 16, 17, 31, 32, 38 ...........12, 37 .......... 13, 33 ............... 32 Department of Transportation Act 49 U.S.C. 1655(e) (4) ........................................... 42 Quasi-StatutoRy Materials : 39 Fed. Reg.12342 ................................................. 5 39 Fed. Reg.16897 ................................................. 6 39 Fed. Reg.30844 ................................................. 18 39 Fed. Reg. 35890 .......................... 2, 4, 7, 12, 18, 19, 20, 25, 27, 28, 34, 36, 37, 42 Cases or authorities chiefly relied on are marked by asterisks. II S y-jrl IV Table of Contents Continued - Page 29 C.F.B. 1910.93 ................. 27 29 C.F.R. 1910.93a(g) (2) .r.:. .7..'............... 38 29 C.F.R. 1910,93o-p ........... ......................... 30, 38 29 C.F.B. 1910.93q(a)(2) ................... 27, 29 29 C.F.B. 1910.93a(a)(3) .................................... 42 29 C.F.B. 1910.93q(b) ......................................... 5 29 C.F.B. |l910.93q(c)........................................... 6 29 C.F.R. 1910.93q(e) ................................ 27, 29, 34 29 C.F.B. 1910.93q(e) (2) ................................... 34 29 C.F.B. l910.93q(f)(2) ................................... 31 29 C.F.B. 1910.93q(g) ......................................... 34 29 C.F.E. 1910.93q(5) ......................................... 34 29 C.F.B. 1910.93q(l)........................................37, 42 29 C.F.B. l910.93q(J) (5) ................................... 42 29 C.F.B. 1911.18(b) ........... -..........................13, 21 49 C.F.B. 172.5.........................................................12,42 49 C.F.B. 173.400 ............................................... 12,42 49 C.F.B. 173.402(3) ........................................ 12, 42 49 C.F.B, 173.404 ............................................. 12, 42 49 C.F.B, 173.407 ............................................... 12, 42 Other Authorities : H. E. Bep. No. 91-1291, 91st Cong., 2d Sess. (1970) .... 37 Sen. Bep. No. 91-1282, 91st Cong., 2d Sess. (1970). .6,15,41 GENC 009645 IN THE United States Court of Appeals Foe the Second Cibouit No. 74-2284 The Society of the Plastics Industry, Inc., Petitioner, v. Occupational Safety and Health Administration, United States Defabtment of Labor ; Peteb J. Brennan, Secbetary, Department of Labor; and John Stender, Assistant Secretary for Occupational Safety and Health. Respondents, Firestone Plastics Company, a Division of the Firestone Tire & Rubber Company, Intervenor, Industrial Union Department, AFL-CIO Intervenor. On Petition for Review of an Order of the Occupational Safety and Health Administration, United Stales Department of Labor BRIEF FOR PETITIONER Wv:-j * fcl ^ \, et :^ *'\ \ * ... ;-'> PRELIMINARY STATEMENT This is a Petition for Review of the Vinyl Chloride Regulation, 29 C.F.R. 1910.93q, promulgated by the Sec retary of Labor on October 4, 1974., The Secretary of Labor's opinions and a general statement of his reasons for the requirements he would impose on the vinyl chloride industry are set out with the Standard at 39 Fed. Reg. 35890 et seq. (October 4, 1974). The Petitioner, The Society of the Plastics Industry, Inc. (SPI), is the major national trade association for the plastics industry. The Society is composed of 1400 mem bers and 50 operating units including producers of the plastics raw materials or resins and of the various modi fiers and adjuvants used, plastics' machinery and mold builders, and those known as processors, converters or fab ricators who turn plastic resins into finished components or products. The Society's membership represents over 95 percent of the plastics materials and machinery produced in the United States and about 75 percent of the processing volume. In the United States today, there are 13 vinyl chloride monomer (VCM) producing plants and 36 plants which polymerize the monomer into polyvinyl chloride (PVC) resin. Twenty-two companies representing over 99 per cent of VCM and PVC capacity are active members of the Society's VCM and PVC Producers Committee. The members of the VCM and PVC Producers Com mittee include: Air Products and Chemicals Inc., B. F. Goodrich Chemical Company, Borden Chemical Company, Continental Oil Company, Diamond Shamrock Chemical Company, Dow Chemical USA, Ethyl Corporation, Fire stone Plastics Company, General Tire & Rubber Company, The Goodyear Tire & Rubber Company, Great American Chemical Co., Hooker Chemical & Plastics Corp., ICI North America Ltd., Olin Corporation, Pantasote Company of New York, PPG Industries, Shell Chemical, Stauffer Jggpa&Tr^j : Spy' pyryITV + * * >; i. .* ur-'-vy...- ft -- ' - -V' fv-I'.'1 V `t'* t. t w *7*''"*i - "_L -. 'v -' ' ' 1 ^ ........ * ( ^ : :i r'y-/.%z* .f .; v> KW- ? .v `-llilH - \L- *__r. GENC 00V647 3 Chemical Company, Tenneco Chemicals Inc., Union Car bide Corporation and Uniroyal Chemical In addition, at least 600 of the Society's fabricator and processor members are active in converting PVC into com ponent or end products. The Society's concern with PVC, thus, begins with the manufacture of VCM and carries forward through the polymerization into PVC, and the various fabrication and conversion processes (i.e., calen dering, blow molding, extrusion, injection molding, and subsequent finishing operations). The Society was officially requested to involve itself on behalf of its members in all aspects of the VCM and PVC regulatory situation by its VCM and PVC Producers Com mittee. Accordingly, it appeared and presented evidence on its behalf at the informal Occupational Safety and Health Administration (OSHA) Hearings conducted June 25 through June 28, 1974 and July 8 through July 11, 1974, submitted written Comments on the Proposed Permanent Standard; the Draft and Final Environmental Impact Statements; and the study by Foster D. Snell Co., Inc. commissioned by OSHA. Similarly, the Society has been duly authorized by its members to present the industry's case to this Court. STATEMENT OF THE ISSUES PRESENTED 1. Whether the promulgation of the Vinyl Chloride Standard was based on determinations by the Secretary of Labor which are unsupported by substantial evidence in the record. 2. Whether, speaking from the technological and eco nomic points of view, the Vinyl Chloride Standard can be complied with by the regulated industry. 3. Whether the Vinyl Chloride Standard is so vague and uncertain in its terms that enforcement of it will violate the requirements for due process under the Fifth Amend ment to the U.S. Constitution. i 4 4. Whether the labeling and sign requirements of the Vinyl Chloride Standard fail to comply with the require ments of the Occupational Safety and Health Act of 1970 and are, therefore, unlawful STATEMENT OF THE CASE The ultimate purpose of this Petition for Review by The Society of the Plastics Industry, Inc. (SPI) et al. is to obtain full reconsideration, within the bounds of the appropriate statute, of the standard for occupational ex posure to vinyl chloride recently promulgated by the De partment of Labor's Occupational Safety and Health Ad ministration (OSHA).1 In the production of polyvinyl-chloride, vinyl chloride monomer (VCM) * is combined with other substances and polymerized into polyvinyl chloride (PVC). The result ant PVC resin is then subjected to further processing into semi-finished or finished products. The uses of polyvinyl chloride are numerous and can best be grouped into five general end-use applications including building and con struction; motor vehicles; home furnishings, household goods and apparel; specialty products, primarily consumer goods such as packaging; and miscellaneous products, in cluding hard and soft-ware for medical, agricultural and industrial applications. Polyvinyl chloride is among the oldest of the major plastic materials. The first commercial plant to make poly vinyl chloride resin in the United States was constructed in 1939. The production of polyvinyl chloride has now grown to the point where its use is almost incomparably ubiquitous; 1 29 C.F.R. $ 1910.93q; 39 Fed. Reg. 35890, et seq. 2 Vinyl chloride is a gaseous chemical under ambient conditions. In manu facturing operations, it is refrigerated, under pressure and handled as a liquid. In the conteit of this proceeding, vinyl chloride is a raw material, more specifically a monomer, used in the manufacture of the polymer, poly vinyl chloride, the second most widely used plastic material few industries can be found which do not employ equip ment, parts, furnishings or the like where PVC is not an integral "ingredient." In 1973, there was an estimated world-wide output of 18 billion pounds and a United States output of 4.6 billion pounds. In response to information made available to OSHA by the National Institute for Occupational Safety and Health (NIOSH) in January of 1974 that the B. F. Goodrich Chemical Company had reported the deaths of several em ployees from a rare form of liver cancer called angiosar coma, OSHA conducted a fact-finding hearing on the pos sible hazards involved in the manufacture and end-use of both vinyl chloride and polyvinyl chloride. Subsequently, OSHA was informed of deaths from angiosarcoma among workers employed by the Firestone Plastics Company, The Goodyear Tire & Kubber Company, and the Union Carbide Corporation. The human deaths from this form of liver cancer and information adduced at the fact-finding hearing about the possibility of inducing the same disease in laboratory ani mals, particularly data presented by Professor Cesare Maltoni of Bologna, Italy, led OSHA to conclude that the inhalation of vinyl chloride is carcinogenic for humans and must be considered carcinogenic for man at the same level as for animals.3 By publication of an Emergency Temporary Standard on April 5, 1974 OSHA lowered its limitations on vinyl chlo ride exposure from a ceiling of 500 parts per million (ppm) to a ceiling of 50 ppm/* Having received additional animal data from Industrial Bio-Test Laboratories of Northbrook, Illinois indicating that angiosarcoma could be induced in test animals at 50 ppm, on May 10, 1974 OSHA proposed a permanent occu- *39 Fed. Beg, 12342, ei teq. (Emergency Temporary Standard). 4 29 C.F.R. $ 1910.93q(b); 39 Fed. Beg. 12343. pational exposure standard for vinyl chloride at a "no detectable" level which was defined as not detectable with a sampling and analytical method capable of measuring concentrations of 1 ppm. In the explanatory statement accompanying the OSHA Proposed Permanent Standard, it was made quite clear that--in keeping with the general policies of the Agency, and the legislative intent of the Occupational Safety and Health Act of 1970 (OSH Act) (both of which place great emphasis on imposing the burden of providing safe work places on employers, not employees)*--the Secretary's intention here was to require or permit the use of respira tors as nothing more than a stop-gap or supplementary measure. The following statement by the Secretary certainly be speaks recognition therein that the wearing of respirators is a nearly intolerable burden on employees and can present significant health hazards so that any standard which would require the full-time use of respirators would have to be considered an extreme measure: "Accordingly, it is proposed to require the institution of engineering controls and of workpractice methods as soon as feasible, and to require the use of respira tors pending the institution of such controls, to sup plement such controls where they are insufficient to re duce concentrations of vinyl chloride below the detects able level, in specified work situations, and in cases of emergency. ' '7 * 2ft C.F.K. { 1910.93q(a), (o); 39 Fed. 'Beg. 16897 (Proposed Permanent Standard). 8 The general duty clause of the OSH Act, which seta the tone of the whole statute, explicitly states "[e]aeh employer shall furnish ... a place of em ployment . . . free from recognised hazards. . . ." OSH Act $ 6(a) (1) ; 29 TJ.8.C. $ 654 (a) (1). What is more, the Senate Keport stated " [em ployers hare primary control of the work environment and should insure that it is Safe and healthful." Sen. Eep. No. 91-1282, 91st Cong, 2d Sess. (1970); 3 V.B. Code Cong. & Admin. News 5186 (1970), r 39 Fed. Beg. 16897. 7 If further proof were needed that it was never the in tention of the Department of Labor to resolve the vinyl chloride monomer problem by requiring full-time use of respiratory equipment, such proof is to be found in the ex planatory statement made by the Secretary when the Permanent Standard here under attack was published. In the portion of the statement of conclusions based on the record enunciated by the Secretary, it was stated as fol lows: "We would agree that respirators have many draw backs; the proposal did not contemplate them as a final solution."* After publication of the Proposed Permanent Standard, a record was developed with regard to a number of facts ' and related issues raised by the proposal. Purportedly basing his conclusions upon the facts in this record, the Secretary of Labor promulgated the permanent occupa tional exposure standard for vinyl chloride now before this Court for review. Specifically, the Standard sets permissible exposure limits for occupational exposure to VCM and requires employers to meet these exposure limits. The evidence adduced in the Record shows that the exposure limitations are both technologically beyond the compliance capabilities of the industry and that human experience data shows such low levels are not required to protect industry employees. Where the feasible engineer ing and work practice controls are not sufficient to reduce exposure to these permissible levels, the Standard specifies that particular types of respirator equipment must be supplied to employees to supplement engineering and work practice controls designed to reduce occupational exposure to VCM. 39 Fed. Reg, 35894. o 29 C.F.R. $ 1910.93q; 39 Fed. Reg. 35890, $eq. Thus, unfortunately, while it is clear that the original proposal did not contemplate the use of respirators on a full-time basis and neither the government nor industry had any reason to believe that OSHA might adopt a stand ard which would have the effect of requiring full-time use of respirators, the final Standard will have precisely this effect. This is because the only evidence of record demon strates the infeasibility of any Vinyl monomer or poly vinyl chloride resin company reaching the permissible ex posure standard; thus, full-time respirator use is actually what is being mandated, in effect, although the Secretary may be unable or unwilling to recognize this fact. It might be noted in passing that, had the Secretary recognized that the practical effect of the imposition of the Standard would be to require inordinate and concededly hazardous overuse of respirators, there might have been adequate notice given in this respect, and the government might have produced testimony to justify its position that full-time use of respirators is feasible and will not create greater hazards for employees than that to which they are now subjected. As it is, all of the testimony in the Record including that of the government's expert witness is to the effect that full-time use of respirators is not feasible, and-might well present a greater hazard to employees than the type of very limited exposure to vinyl chloride monomer industry has advocated. Moreover, the various types of respirators prescribed in the Standard were neither designed for, nor are they prac tical for use over long periods of time. As a practical matter, the operation of a chemical plant is not feasible if employees are encumbered by respiratory protective equip ment. Furthermore, because of inherent respirator limitations, detailed in the Record, many employees cannot use this equipment because of current health conditions or prob lems that would be caused by long-term respirator use. Additionally, the required respiratory equipment is not available in sufficient supply. Without respirators to1 ` sup plement" engineering and other controls, the industry will not be able to operate under the new Standard. A "Peti tion for Stay of Effective Date of Standard" filed with OSH A on November 5, 1974 contains more detailed infor mation in this respect.10 The scope and application of the Standard cover all three segments of the industry and secondary service-type industries as well. The Standard, as written, would result in its application to fabricators, processors, the transportation industry, warehousing and the like. Actually, for "downstream operations," in almost all cases the danger of exposure to VCM is remote because they do not use vinyl chloride mono mer, per se; they use or handle only the polymeric resin which contains some low levels of residual VCM. Never theless, at every location where VCM or PVG is manu factured, reacted, packaged, repackaged, stored, handled or used and where employees may be exposed to more than 0.5 ppm of VCM, the employer must monitor individual employee exposure. The Standard also mandates labeling for regulated areas and all containers of VCM or PVC. The central feature of the required labeling is the term ` ` cancer-suspect agent. ' ' The Standard does not require the type of "information labeling" generally prescribed in similar situations, e.g. as with asbestos, now governed by a separate OSHA Standard. The Secretary apparently did not consider the impact this Standard would have on the country's economy as a 10 Sine this Petition was filed after designation of the Record to this Court, a copy of the Petition and its appendices are included in this Brief as Appendix B. 10 whole in his decision making process. Evidence was presented to show that if the industry were closed down, enormous displacements both in terms of jobs and national economics, would occur. SUMMARY OF THE ARGUMENT The Occupational Safety and Health Administration of the United States Department of Labor promulgated an occupational exposure standard for vinyl chloride which would severely restrict the permissible employee exposure to vinyl chloride by setting, in effect, a "no detectable" limitation on exposure. It is now clear that the only way this limitation can be achieved would be by requiring the continuous use of respirators in most vinyl chloride monomer and polyvinyl chloride resin plants and by placing other unwarranted and intolerable burdens on the monomer and resin manufacturers and their employees. The Secretary's principal basis for taking such extreme action was an essentially arbitrary "policy judgment" that the Standard, as written, is necessary, though reaching the exposure limitations is, for all practical purposes, conceded to be infeasible with present or foreseeable engineering practices or technology. Moreover, in making the judg ment the Secretary does not forthrightly concede that the Department is effectively mandating the full time use of respirators; on the contrary, it appears that this effect is not what was intended at all. It therefore appears that the adverse effects of full time respirator use were prob ably weighed seriously only by industry. In making his determinations on the health issues in the case, the Secretary repeatedly characterized the evidence in the Record as "uncertain," using this wholly negative contention to justify taking an inordinately severe position. In short, the Secretary used an alleged evidentiary void to justify a decision without a factual basis upon a reading of the Record sis a whole. The Standard for judicial review of an Occupational Safety and Health Act Standard is the "substantial evidence" test. Associated Industries of New York State, Inc. v. United States Dep't of Labor, 487 F.2d 342 ( 2d Cir. 1973). The Secretary not only lacked evidence for his determinations on the need for and feasibility of the ex posure levels adopted, and important aspects of the respirators and monitoring systems requirements, but there was an abundance of evidence of Record militating in favor of almost completely contrary conclusions. An examination of the evidence does not show that a virtual "no detectable" exposure level is either achievable or necessary to protect workers; that the polyvinyl chloride fabricators, transporters and warehousemen need to be regulated; or that the presently prescribed exposure levels and respiratory protection requirements can be achieved technologically, or provided in a timely fashion. Feasibility of achievement, both technological and economic, is an indispensable statutory consideration for the Secretary in Occupational Safety and Health rule making. OSH Act 6(b) (5); 29 U.S.C. 655(b) (5), In dustrial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974). The Secretary is prohibited from pro mulgating a standard which will have the effect of re moving employers from business by saddling them with unattainable or vague standards which a Record shows are technologically impossible to meet; obviously, if one cannot foresee any certainty of achieving a goal set by the Secretary but is required to continue expenditures with or without reasonable hope of success, as is the case here, the Standard is not technologically feasible within any rule of reason. The Secretary also failed in his obligation to promulgate a standard which men of reasonable intelligence could understand. Since many provisions of the Standard are so inartfully drawn that a reasonable man cannot know what they mean in terms of practical application, the Standard should he declared void as vague and unen forceable. As a final requirement to be placed on those who would be controlled by the Vinyl Chloride Standard, the Secretary set out labeling requirements. Over objections and ignoring entirely the constructive alternative proposals of SPI and others, the Secretary would require labeling which focuses only on the name of the product, vinyl chloride, and the words "Cancer Suspect Agent."11 The mandate of Congress in enacting the Act was to require instructive labeling which would provide information on how to deal with the hazard and prevent injury. OSH Act 6(b)(7); 29 IJ.S.C. 655(b)(7). In this aspect, also, the Secretary exceeded the scope of his statutory authority, abused his discretion, and, thus, promulgated an unlawful standard. The Secretary also stepped beyond the bounds of his authority by extending his labeling requirements to all containers of VCM, i.e., even containers of VCM in inter state transportation would be subject to his labeling. The Secretary's authority to regulate occupational safety and health does not include areas where other Federal agencies have established standards, OSH Act 4(b)(1); 29 IJ.S.C. 653(b)(1), and the Department of Transportation has already set labeling standards for the transportation of vinyl chloride.l1l2 Thus, the Standard is unlawful insofar as it purports to directly affect the labeling of VCM con tainers in transportation. ll 29 C.F.K. $1910.93q(l); 39 Fed. Keg. 35898. 49 C.FJR. 4J 172.5, 173.400, .402, .404, .407. ARGUMENT I TO BE SUSTAINED IN THE PROMULGATION OF A STANDARD SUCH AS THE ONE HERE IN ISSUE, THE SECRETARY OF LABOR MUST DEVELOP A RECORD, CAREFULLY ELUCIDATE FINDINGS BASED ON THE RECORD, AND REACH CONCLUSIONS THAT RESULT IN A STANDARD WHICH IS FEASIBLE: HIS FAIL URE TO MEET THESE BASIC REQUIREMENTS IN THIS CASE MAKE THE PROMULGATION OF THE STANDARD UNLAWFUL AND INVALID. Before a standard for occupational safety and health may be promulgated by the Secetary of Labor a specific rule making procedure must be followed13 and "[t]he determinations of the Secretary shall be conclusive [only] if supported by substantial evidence in the record con sidered as a whole.1' OSH Act 6(b) and (f); 29 TJ.S.C. 655(b) and (f); and 29 C.F.R. 1911.18(b) (emphasis added). In promulgating Occupational Safety and Health Regu lations, "substantial evidence" has been held to be the appropriate standard for review of the Secretary of Labor's action even when it results from an informal rule making procedure. Associated Industries, supra, at 342.14 Thus, the Courts have recognized that Congress expected the Secretary to exercise his rule making power on the basis of "substantial evidence" contained in the record; the law does not contemplate the making of critical de ls This procedure includes notice, development of a record including an informal factual hearing if requested, and, if the Standard is adopted, incorporation in the rule making notice of a concise general statement of its basis and purpose. is For the application of the "substantial evidence5' rule to other forms of adjudicative determinations by the Occupational Safety and Health Ad ministration, see, Florida Peach Growers Association Inc. v. United States Bep't of Labor, 489 F.2d 120 (5th Cir. 1974) and National Bealty $ Con struction Co. Inc. v. Occupational Safety and Health Beview Commission, 489 F.2d 1257 (4th Cir. 1973). 14 cisions based on administrative fiat or unfounded "beliefs" as to what industry might be able to accomplish. The term "substantial evidence" has been defined succinctly as . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951); Associated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (emphasis added). It "must do more than create' a suspicion of the existence of the fact to be established ... it must be enough to justify', if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. ' ' Universal Camera, supra, at 477; NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, '300 (1938). The test, therefore, is not one of simply finding something, however isolated, in the record to support the agency's determi nation. An examination of the whole record is necessary to see if the agency has met its evidentiary burden of bringing reliable and determinative facts to light, thereby enabling it to make responsible decisions. Clearly this is what Congress had in mind since it was and is well rec ognized that OSHA's actions can affect the lives and jobs of millions of people--this case is an excellent example of how much can be at stake.1186 * In promulgating Occupational Safety and Health Standards, the Secretary is mandated by the statute to make his determinations on the "best available evidence" so that his decisions will withstand scrutiny under the 16 Joint Appendix (hereinafter referred to as: "JA") 2580 and 2617; The report of A-D. Little, Inc., an economic impact analysis of the effect of a "no detectable" exposure limit on the VCM and PVC industries, indi cated that a shut down of all PVC resin plants in the United States and unavailability of PVC resin could result in a loss of 1.7-2.2 million jobs. A report by General Motors Corporation indicates severe reductions in VCM production would directly affect 45,000 GM employees and that the ripple effect, that is, GM-related layoffs alone, could reach 1.8 million workers. JA 2359. GENC 009659 substantial evidence test. Standards must be developed based on research., demonstrations, experiments and other appropriate information and, along with employee safety and health, the considerations to be weighed must also include the latest available scientific data, the feasibility of the Standard, and the experience gained under all health and safety laws. OSH Act 6(b) (5); 29 U.S.C. 655(b)(5). Such a critical inquiry into the evidentiary basis for the Standard promulgated by the Secretary is one Congress determined the Courts must undertake to provide an effective check on his performance of the exceptionally broad regulatory duties delegated to him under the statute. Absent such a review, there would be no way to bar arbitrary use of the Occupational Safety and Health Ad ministration's virtually plenipotentiary powers over in dustry and its employees. Section 6(b)(5) of the OSH Act states that "[t]he Secretary shall set the Standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity . ..." 29 TJ.S.C. 655(b) (5) (emphasis added). Senator Javits, who authored the amendment which inserted the phrase "to the extent feasible" in the OSH Act, explained its meaning as follows: "As a result of this amendment the Secretary in setting standards, is expressly required to consider feasibility of proposed standards. This is an improve ment over the Daniels bill, which might be interpreted to require absolute health and safety in all cases regardless of feasibility, and the Administration bill, which contains no criteria for standards at all ' ' Sen. Rep. No. 91-1282, 91st Cong. 2d Sess. (1970) ; 3 U.S. Code Cong. & Admin. News 5222 (1970). Si*:i 42?.*/*->*vifl 1$ T 16 The statutory language has been interpreted to mean that the Secretary cannot "... [put] employers out of busi ness--either by requiring protective devices unavailable under existing technology or by making financial viability generally impossible." I.U.D. v. Hodgson, supra, at 467. Thus, the feasibility requirement can have two aspects-- one technological and the other economic. It is clear that the regulated industry's ability to achieve feasibily a given requirement is a primary matter for consideration by the Secretary which cannot be ignored. Thus, if employers are unable to comply with a standard because of a lack of existing technology or an exorbitant cost which would drive them from the market, that standard is unlawful because it contravenes the dictates of the statute. Petitioners submit that this Court's examination of the Standard for occupational exposure to vinyl chloride and the bases on which it was finally promulgated will reveal that the Secretary did not reach the critical conclusions he has enunciated on the basis of the best available evidence taken from the record as a whole. Likewise it is sub mitted that the Secretary did not make rational findings or conclusions on the major technological feasibility or employee health issues hereinafter discussed and, hence, has promulgated a standard which is unlawful and invalid. t&g->.. "TM "TRi*;?f .- S3 s^rXi*ip-' ^,' i'1 r-i# . ' " IX?'* *.,* , - . GENC 009461 THE RECORD BEING DEVOID OF A SCINTILLA OF EVI DENCE TO SUPPORT THE TECHNOLOGICAL FEASI BILITY OF ACHIEVING THE EXPOSURE LIMITS IN THE VINYL CHLORIDE STANDARD, THE REAL EF FECT OF ADOPTION OF THE STANDARD WILL BE TO COMPEL FULL-TIME USE OF RESPIRATORY PROTECTION BY THE WORK FORCE; THE ONLY EVIDENCE OF RECORD INDICATES THAT THIS RE SULT WILL MAKE SAFE PLANT OPERATION TECH NOLOGICALLY INFEASIBLE AND BE DETRIMENTAL TO EMPLOYEE HEALTH In promulgating a standard dealing with toxic materials or harmful physical agents, the Secretary is required to set a standard which, to the extent feasible, most ade quately assures no employee will suffer impaired health or functional capacity. OSH Act 6(b) (5); 29 U.S.C. 655 (b)(5) (emphasis added). Feasibility in this sense must take into account the technological possibilities of achieving compliance with a standard as well as any adverse impact on employee welfare that adoption of a standard might have. LU.D. v. Hodgson, supra, at 477-78.ia In the course of the fact finding process, the Secretary recognized the evidentiary importance of the feasibility issue and directed that a special technological and economic feasibility study be conducted by Foster D. Snell, Inc. to determine the technological and economic feasibility of compliance with the original Proposed Permanent Standard and several other exposure levels intermediate between the proposed "no detectable" and the Emergency l# Daniel P. Boyd, Ph.D., Director of OSHA Office of Standards Develop ment, defined feasibility in exactly the same terms during the June hearings: "Some commentors have naked what 'feasible' means. Within the terms of this proposal, feasibility refers to both technological and eco nomic considerations. On the one hand, does the technology exist that would allow the employer to achieve compliance and, on the other, what are the costs associated with the application of these technologies. It is both proper and necessary that we consider these matters in our de liberations.'' JA 178. 18 Temporaary Standard limit of 50 ppm as a ceiling exposure.1T With both the OSHA-commissioned Snell report and a plethora of industry evidence before him, all clearly in dicating that compliance with a 1 ppm level is not tech nologically feasible, the Secretary nevertheless concluded: "We also believe that PVC and VC establishments will, in time, be able to attain that level [1 ppm time weighted average (TWA)] through engineering con trols, and that fabricators can do so in the immediate future."1* The Secretary candidly recognized " . . . that many employers covered by the Standard cannot currently achieve compliance with permissible exposure limits solely by the use of feasible engineering and work practice controls," and ". . . agree[d] that the PVC establishments will not be able to attain a 1 ppm TWA level for all job classifications in the near future."14 It is respectfully submitted that in discussing the Snell Report alone, the Secretary summarized the evidence as showing that a 1 ppm standard for exposure to vinyl chloride cannot be feasibly attained, contrary to his "belief," by noting: ". . . the Snell study on technological feasibility concluded that a 1 ppm ceiling is not feasible for the VC and PVC industries with present technology, but that the VC industry could currently attain lower exposure levels than the PVC industry.80 Ample evidence that compliance with a "no detectable" level, i.e. a level around 0-1 ppm, is technologically in- 17 39 Fed. Eeg. 30844 and 39 Fed. Eeg. 35890. 18 39 Fed. Eeg. 35892. i 39 Fed. Eeg. 35892-93. SO 39 Fed. Eeg. 35892. feasible to achieve had already been introduced into the Record by industry spokesmen21 before the Snell Report confirmed that a time weighted average (TWA) level around 10 ppm for the VCM industry and around 25 ppm for the PVC industry was the lowest exposure level feasible with presently available technology.22 This evidence has yet to be contradicted by even a scintilla of probative data leading to any other possible conclusion regarding realistically feasible exposure levels.23 From the foregoing, it cannot be said that the evidence in the Record is uncertain or unclear as to whether industry can feasibly reduce occupational exposure to VCM to the 0-1 ppm range. The OSHA consultant, Snell, and industry spokesmen must be considered as having provided the best available evidence on technological compliance since their input was based on actual engineering calculations and voluminous expert opinion which is essentially un contradicted on the Record. Nevertheless, the Secretary made his subjective determination supported only by a statement that it is his "belief" that industry, with the development of new technology, engineering and work 21 Set, e.g., the statement of Anton Vittone of the B. F. Goodrich Company speaking for the Petitioner, SPI, JA 560, Joseph Fath, Tenneco Chemicals, JA 745, Richard Fleming, Air Products, JA 932-33, Karl Oelfke, Dow Chem ical, USA, JA 1034-35, Harry E. Connors, Diamond Shamrock, JA 1318-19, John L. Nelson, B. F. Goodrich, JA 1381, Martin J. Kleinfeld, Uniroyal, JA 1576, and Todd C. Walker, Firestone Plastics, JA 1668. Accord, Borden, Goodyear, Hooker, Pantasote, Stauffer, and Union Carbide. JA 2342, 2300, 2285, 2701, 2371 and 2422, respectively. 22'' Economic Impact Studies of the Effects of Proposed OSHA Standards For Vinyl Chloride," a report done by Foeter D, Snell, Inc. under OSHA Contract No. L/A 74167 (hereinafter referred to as the "Snell Report") JA 3683. 28 As the Secretary did point ont, however, the labor unions and the Health Research Group, neither of which had conducted any studies or pro fessed expertise of any relevant type, "suggested" that a 1 ppm ceiling level is attainable. 30 Fed. Reg. 35892. S^/- _ ,... . j- ' . -y-,,. c.- -A- 5:; '",'Sv: ;r y.) y. v' -' .*.* v'-V w ' ' * :*i. "V : V;' rsral practices, will continue to make "great strides in reducing exposure levels. ' '** The inescapable fact is that there is no probative evidence to support the Secretary's determinations as to the technological feasibility of achieving compliance with the permissible exposure levels. The evidence clearly demonstrates that the Standard is simply beyond the com pliance capabilities of the industry. Thus, the Secretary's decision on the permissible exposure limits lacks sub stantial evidentiary support in the Record, is unlawful, and should be declared invalid. The net effect of the Secretary's action in adopting the instant Standard will be to require that virtually all of the work force in a vinyl chloride or polyvinyl chloride plant be equipped with and actually use respiratory protective equipment on essentially a full-time basis. As indicated in the Statement of the Case, it is celar that the Secretary never intended this result. Yet, the Record facts in the case lead inexorably to the conclusion that the Secretary's 39 Fed. Beg. 35892. The Secretary's confidence that industry can eventually reach the exposure levels he would require is sheer speculation in its worst form. The decision itself is contrary to all known facts and saddles those who suffer the brunt of the conjecture with the personal and economic cost of the Secretary's error. By speculating that his Standard can even tually be reached, the Secretary has put the VCM and PVC industry on a treadmill to oblivion with a continuous cycle of money for new engineering controls, new plans to attempt to further reduce exposure, more money for different--not necessarily better--engineering controls to attempt to further reduce exposure, ad infinitum. It should also be noted that the Secretary's opinion vacillates on the facts in issue. Specifically, he states that he "be lieves" that "in time" the industry can achieve compliance with the per mitted levels (39 Fed. Beg. 35892) but that he is ". . . presently unable to determine when it will be feasible for most establishments to reduce exposure levels to the permissible level," (39 Fed. Beg. 35894) "[n]or is it clear to what extent exposures can be feasibly reduced." (39 Fed. Beg. 35892). Vet industry will be expected to spend untold sums and search indefinitely to satisfy the Secretary's unfounded confidence that it can locate something akin to the Fountain of Youth. 21 permissible exposure limit concept is so clearly un achievable by industry that the only practical way to comply with the law will be by supplying respiratory equipment to every employee in a VCM and PVC plant. Moreover, it is likely that many of the workers will have to wear the respirators full-time immediately after January 1, 1975. 25 The Secretary expressed the hope that other methods of protection could be found and failed to address the real issue: Is it feasible to operate a plant at all if full time use of respirators is a prerequisite! The Secretary's allusion to the ` ` many drawbracks ' ' associated with the use of respirators does not begin to satisfy that requirement in the Department's own regulation which directs that a Standard be accompanied by a statement which ". . . will show the significant issues which have been faced, and will articulate the rationale for their solution."26 The Sec retary's failure to provide anything more by way of explanation in a similar situation caused this Court to vacate another OSHA standard, saying "... we must insist on something more than an ipse dixit, now sought to be supported by references by [government] counsel . . . Associated Industries, supra, at 354. See also, Automotive Parts & Accessories Association v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968). The evidence of record lends no support to the view that such operation would be feasible or safe, even as suming an adequate work force, eligible and willing to function in respirators, can be secured. Indeed, the Record as For eiample, one witness testified that, if the Proposed Permanent Standard were effectuated, " [w]e would have to place all operational and support personnel at our PVC manufacturing sites in respirators all of the time" (emphasis added). JA 821. 229 C.F.R. $ 1911.18(b). n 'A h `A- compels the opposite conclusion, i.e. that such operation is infeasible." Once it is recognized that the Secretary's decision on the permissible exposure limitations makes extensive use of respiratory equipment a practical necessity, regardless of what the Secretary might have intended or now hopes or "believes," much greater attention must be given to the testimony in the Record indicating that very real dangers of an immediate nature are necessary concomitants to the use of euch equipment. Firstly, respirators can, in and of themselves, create safety hazard in work areas because of their bulk and, in some, cases, the inherent nature of the equipment particularly where it is of the air line variety. Actually, all of the evidence indicates clearly that the use of respiratory equipment gives rise to serious health and safety considerations which might well be viewed as presenting more acute problems and warranting greater concern than exposure to very low levels of air contaminants. ST In addition to the fact that the full-time use of respirators violates good industrial hygiene practices, more than intermittent use is impractical be cause new and unnecessary safety problems are created, the work force tires from increased breathing effort and exertion expended in carrying air tanks or coils of air hose, and, typically, the employees tend to become "accident prone,'' and otherwise inefficient as a result of fatigue. JA 285, 293, 538, 722 F-G, 741, 822, 648-50, 964-65, and 1331-33. 28 The testimony of Hyatt (JA 283 through 312), Soule (JA 722-G) and Hr. Tomashefski (JA 524 through 535) indicates that supplied air respira tory protection devices--that is, both self contained and air line types--are designed for and Bhould be used only in situations that are immediately haz ardous Or very hazardous to life, respectively, and that neither is appropriate for routine or day-to-day use.28 28 The specific safety hazards referred to by the expert witnesses are: as to the devices themselves--air contamination, device malfunction (e.g. failure or disconnection), and air source malfunction (e.g. shutdown); as to the use of the devices--tripping and falling over air lines, air line tangling (espeeially if line is of great length), kinking and shutting off air, mobility restriction, restricted sight (including fogging of the eyepieces), restricted hearing, and restricted voice communications. JA 312, 527, 528, 552, 715, 716, 740 and 794. That the use of respiratory equipment can lead directly to severe injury is almost self-evident This is particu larly true where such equipment must be employed in complex industrial manufacturing establishments. As a representative of Tenneco pointed out during the course of the OSHA Hearing, workers burdened with bulky breathing equipment or trailing long hoses can find themselves in serious jeopardy in a vinyl chloride facility which, typically, is "a multi-story operation [with] many catwalks or narrow passageways, stairwells, [and] moving machinery."80 Tenneco's representative had reason for being particularly impressed with the hazards involved for he was aware that his company had had at least one employee fatality which occurred when a worker wearing breathing apparatus connected to a lengthy air hose fell from a ladder due to the cumbersome nature of the respiratory equipment.81 Considerable industry testimony demonstrates that full time use of respirators is impractical. All testimony on this topic indicated that respiratory protection devices ^ were designed for short term use, that is, 15 to 60 minutes.82 Even the government's witness in this area, Mr. Edwin C. Hyatt, a recognized expert in the field, testi fied that no one could work in a respirator effectively for long periods of time.83 Mr. Hyatt very forcefully noted that "[a]t best, any of these devices are [sic] an instru ment of torture,"31 * ** *0JA 847-48. Mid. **See testimony of Edwin C. Hyatt (JA 298-303); Joseph A. Tomashefski, M.D. (JA 535-E and 539); Boger A. Strassburg, Ph.D, (JA 722-H); Paul Lobo, Ph.D. (JA 793); and Karl Oelfke (JA 1112). SSJA 298. SJA 303. <$ --------- -f---riirr^iMliriitfiiii m 24 In addition to the Hyatt testimony, the other evidence of record leaves no doubt but that a serious and properly directed evaluation of the risk-benefit ratio between res piratory protection and very low level vinyl chloride monomer exposure (e.g., the 10 ppm TWA, 25 ppm maxi mum recommended by the Snell Report) should have been undertaken by the Secretary prior to the setting of an arbitrarily derived exposure limitation which would have the effect of mandating full-time use of respiratory pro tection. Were this done, at least the Court would be in a position to know that the Secretary had consciously bal anced the admonitions given by experts such as Drs. Tomashefski and Soule against the taking of an action which would require, as a practical matter, the use of res piratory protection on a full-time basis. Dr. Tomashefski pointed out, for example, that even with respect to those who can wear respiratory protection, it being understood that somewhere in the neighborhood of 32% of the work population should not wear such equipment under any circumstances because of chronic obstructive pulmonary disease,36 those who are forced to wear respirators will have difficulty because of "increased resistance to breathing, decreased efficiency of function, poor fit, leakage, false security, allergic reactions, irritation from perspiration and other particulate depositions, rebreathing, bead space ventilation, poor vision, fogging of eye pieces, speech, psychological and contamination problems.5 '3,1 The difficulties with respiratory equipment highlighted by Dr. Tomashefski and the other experts in this field are known to have led to serious accidents, particularly in industries where fire and explosion are the most common concerns. For example, an incident at a Diamond Sham- S5JA 532. 18 JA 534. Roger W. Strassburg, Ph.D., added the folio-wing to Dr. Tomaehefski'e list: headaches, inflamed facial glands, edema of the scalp, drying of the eyes and general skin irritation, JA 724-27. rock PVC plant in Texas was widely reported in 1970. When a valve gasket failed, an operator immediately observed the potential hazard and loudly ordered all in sight to evacuate. Seconds later there was indeed a fire and explo sion which led to the death of one worker and severe injury to several others. Had either the vision, the hearing, or the capability for verbal communication of the operator been impaired because of the use of respiratory equipment, or had the mobility of the workers compelled to evacuate been impeded, many more lives would certainly have been lost. Such incidents leave no doubt but that the virtual full time wearing of respiratory protection which the Sec retary's action has now made a necessity can present serious threats to health and safety. Despite this fact, the Secretary, still relying on his "belief" that respirators may not be required indefinitely, dismisses the subject with the cursory observation that the use of respiratory pro tection will only be ". . . inconvenient, may require addi tional personnel, interfere with production, or may require extensive retraining of employees and restructuring of work practices."37 Nothing is said about the employees that may have to be layed off or might become chronically ill because the full-time use of respirators will have been made mandatory as a practical matter. The point here is that the Secretary's decision does not give any assurance that the evidence of Record was weighed in the correct factual context. While the Secretary may have said that careful consideration was given to the inconvenience involved in respirator usage, the decision does not reflect recognition that the usage might need to be constant so that health and operational feasibility con siderations needed to be weighed with this prospect in mind. Finally, the Secretary ignored the fact that it will be wholly impossible for industry to obtain a sufficient supply #T 39 Ted. Beg. 35894. of the respiratory equipment now required if the Standard is allowed to become effective on January 1, 1975. A full explanation of this problem was presented to OSHA in the "Petition for Stay of Effective Date of Standard" referred to in the Statement of the Case in this brief. (A copy of the Petition is included herein as Appendix B.) By way of a brief recap of the said Petition, the main point is that because of the great demand and an inade quate supply, it is physically impossible for the VCM and PVC industries to equip themselves with an adequate number of approved respiratory protection devices by January 1,1975. In fact, not only is the designated equip ment not available in sufficient supply, many of the devices specified for use have not as yet and will not he approved by Janunary 1, 1975; they may never be approved. Even if these approvals were in hand, a sufficient supply of the respiratory equipment required could not be made available to the industry in sufficient time for it to comply with the Standard by its present effective date.38 With the breadth of the application of the Standard encompassing fabricators, compounders, the transportation industry, and warehousing as well as the VCM and PVC manufacturers, the demand by industry at large for respiratory protective devices must he expected to escalate. Additionally, it is also certain that some parties regulated by the Standard, especially small firms, will not be able to afford to equip their employees with the required respira tory protective devices.89 In summary, it is respectfully submitted, that despite the unrealistic and unfounded optimism expressed by the Secretary regarding anticipated engineering achievements, the net effect of the Permanent Standard will be to require full-time use of respiratory equipment by the industry's* *8 Appendix and attachments thereto. work force. It is further submitted that the Secretary's failure to evaluate adequately either the feasibility of operations under these conditions, the availability of the respiratory equipment needed, or the impact on the health (or availability) of employees that full-time use of respirators would entail, warrants reversal and reevalua tion of the Secretary's action in adopting the Vinyl Chloride Standard. Ill THE RECORD AS A WHOLE DOES NOT CONTAIN SUB STANTIAL EVIDENCE TO JUSTIFY APPLICATION OF THE STANDARD TO FABRICATORS OR PROC ESSORS OF PVC RESIN, MANY OF WHICH WOULD FIND IT ECONOMICALLY INFEASIBLE TO COMPLY. As to its scope, the Standard would apply to the manu facture, reaction, packaging, repacking, storage, handling or use of VCM or PVC and regulates access to areas where VCM concentrations are in excess of the permissible ex posure limits. In explaining the scope of the Standard, the Secretary points out that the industry is divided into three segments which include VCM production, PVC or polymer produc tion, and fabrication. As to the fabrication of PVC, the Secretary points out that a variety of techniques are used to form a finished product and that this portion of the in dustry accounts for the vast majority of employees whose employers range in size from those with a few employees to more sophisticated firms with larger work forces. 41 Responding to an industry suggestion that PVC fabri cators, processors and the like be exempt from the Stan dard inasmuch as they are already regulated by the more applicable clean air standards, 43 and, further, because their 40 29 C.FJt. $ 1910.93q(a) (2) and (e); 39 Fed. Keg. 35896. <1 39 Fed. Keg. 35890. 28 exposure to YCM was known to be minnte and controllable by existing engineering and work practice controls, the Sec retary responded that it would be imprudent to grant a blanket exemption for fabricators because the Record evi dence shows that at least some employees in that segment of the industry may be exposed in excess of the 1 ppm per missible exposure level.43 The evidence of the Record shows that the fabricators and processors do not use YCM. They use only PVC resin and are, thus, in an inherently less susceptible position with regard to exposure. In fabricating and processing plants, the only potential exposure is from low levels of residual VCM present in the PYC.u Because of this, PYC fabri cators and processors have very low levels of exposure in their operations. In almost every case reported, the occu pational exposure was less than 1 ppm.4B In addition to already inherently low exposure levels con trollable by known engineering and work practices, this Standard confronts PYC fabricators and processors with a very serious economic feasibility problem. This segment 39 Fed. Reg. 35S92. Acknowledging that most, if not all, fabricators currently have levels of 1 ppm over an 8 hour period or aTe capable of reaching the permitted exposure levels through known engineering controls in the immediate future, the Secretary nevertheless would include fabricators in this Standard and require them to conduct at least initial monitoring. 39 Fed. Reg. 35892-93. 44 By means of explanation, when vinyl chloride is converted to polyvinyl chloride a very Bmall portion of the vinyl chloride, that is, generally less than 0.1 percent remains unreacted in the polyvinyl chloride. <5 Although many individual companies presented evidence that their fab rication operations had exposure levels below 1 ppm, the most comprehen sive presentation on occupational exposure to VCM in this segment of the industry was presented in a block by five witnesses testifying for SPX, Messrs. Molinini, Beebe, Smith, Becker and Weaver. JA 4102 through 4176. In short, these reports, covering in excess of 70 plants where actual monitoring for VCM had been conducted in the very short time available, demonstrated that less than 10 workers had exposures for any time period above 1 ppm. Nonetheless, in each case listed, average exposure was Jess than 1 ppm, i.e., less than 1 ppm for an S hour TWA. GQiC 009673 29 of tlie industry is, in large part, composed of many smaller firms with few employees that, from a purely economic point of view, could not afford the costs of compliance with the Standard. The general increase in raw materials costs (an unavoidable result of this Standard), and the costs of monitoring, respiratory protection, medical surveillance and record keeping all militate against the likelihood that the bulk of this segment of the industry would be able to sur vive economically.48 Also germane is the fact that no confirmed cases of car cinogenicity related to VCM have been found in PVC fab rication and processing operations. Thus, the Secretary's decision to extend the scope of the Standard to polyvinyl chloride fabricators and processors is not founded on substantial evidence in the Record to show that it is economically feasible for this segment of the in dustry to achieve compliance with the Standard or that fabrication and processing operations are in any way simi lar to or have exposures of the same nature as existing vinyl chloride and polyvinyl chloride manufacturing opera tions, nor that any hazard exists in this segment of the in dustry. In short, there is no evidence of a need to regulate these areas. The Standard's scope also extends to cover the storage, handling and transportation of PVC.47 There is no evi dence in the Record whatsoever to demonstrate that any hazard exists in ship, truck or rail transportation, ware- 46 For example, on the one issue of the non-availability of PVC resin at a reasonable cost, the evidence is clear that PVC belting (used, e.g., as con veyor belting in coal mines), slush molded boots and a variety of other footware, medical equipment, eepecially surgical tubing and blood bags, and joint sealing compound for airport runways, bridges and highways, among other items could no longer be produced and, since replacement materials are non-existent or scare, these industries would, at the very least, suffer economic disaster if not close down completely. JA 387, 515, 1351, 1642 and 2075, 29 C.F.B. $ 1910.93q(a) (2) and (e) ; 39 Fed. Beg. 35896, [HI 6ENC 009674 v-i' `i mmm 30 housing or other handling of PVC. Despite the fact that no hazard has been shown or even alleged, the Standard as written puts a direct and undue burden on the secondary in dustries that service the VCM and PVC manufacturers by providing transportation and storage. In other regulations promulgated by OSHA, materials containing small amounts of a carcinogenic material are ex empted from the application of regulations governing ex posure to them. Specifically, in the regulations governing exposure to the "14 carcinogens" the regulations do not apply to trans-shipment of those materials in sealed con tainers nor do the regulations apply to' liquid or solid mix tures containing less than from 1.0 to 0.1% of the carcino genic substances. <s In viewing the suggestions by industry that VCM should be regulated in a manner comparable to tbe "14 carcino gens", the Secretary responded that the cases are not com parable. It is true that the cases of VCM and the "14 carcinogens" are not precisely comparable; the "14 car cinogens" are materials that range from between 100 to 1000 times the carcinogenic potential of VCM.'*9 In this area, too, it is clear that the Secretary's decision was not based on substantial evidence in the Becord; his views are also at variance with experience gained in estab lishing the Standards for the "14 carcinogens." This all bespeaks the type of arbitrary and capricious decision mak ing which characterizes the instant case. More important, these failings, like those previously discussed demonstrate the necessity and propriety for remanding this matter to the Department of Labor with clear instructions to it to base its VCM Standard on facts supported by substantial evidence, feasibility and relevant precedents. ** 29 C.F.K. $$ 1910.93e through 1910.93p, <9 JA 3975-76. GENC 009675 THE VINYL CHLORIDE STANDARD IS SO VAGUE AND INDEFINITE THAT IT VIOLATES THE CONSTITU TIONAL RIGHT TO DUE PROCESS AND FAILS TO COMPLY WITH THE REQUIREMENTS OF THE ACT As noted above, the Vinyl Chloride Standard is couched in the alternative: either an employer must reduce vinyl chloride exposure to the permissible exposure limits of 1 ppm and 5 ppm or, in the alternative, the employer must provide respiratory protective equipment and at the same time reduce exposures to the greatest extent feasible as soon as feasible. This part of the Standard, 29 C.F.R. 1910.93q(f)(2), provides: "Wherever feasible engineering and work practice controls which can be instituted immediately are not sufficient to reduce exposures to at or below the per missible exposure limit, they -shall nonetheless be used to reduce exposures to the lowest practicable level, and shall be supplemented by respiratory protection in ac cordance with paragraph (g) of this section. A pro gram shall be established and implemented to reduce exposures to at or below the permissible exposure limit, or to the greatest extent feasible, solely by means of engineering and work practice controls, as soon as feasible" (emphasis added). Since the permissible limit is unattainable, as a practical matter the only standard applicable to employers for the foreseeable future is the second alternative, to provide res piratory equipment and to reduce exposures to the lowest "practicable" level by "feasible" engineering and work practice controls. In direct contrast with the specific and objective criteria established for compliance with the per missible limit, this portion of the Standard is so vague and indefinite as to be violative of the Due Process Clause of the Fifth Amendment to the United States Constitution and the specific requirement contained in 6(b)(5) of the Act, 29 U.S.C. 655(b) (5), that, whenever practicable, health and safety standards ". . , shall be expressed in terms of BKaUJUEHLWT'.-P'JW' 32 objective criteria...." The ambiguity inherent in this part of the Standard provides absolutely no guidance to em ployers and will necessarily result in confusion and uncer tainty, not only with respect to the "feasible" methods which are required to comply with the Standard, but also with respect to the exposure levels sought to be achieved, for such levels are expressed only in terms of what may be the "lowest practicable" levels attainable. The due process guarantees of the Fifth and Fourteenth Amendments void all governmental attempts to regulate conduct where, as here, substantial penalties may be im posed for failure to comply with regulations, OSH Act 17; 29 TT.S.C. 666, which are so vague and indefinite as to leave the regulated parties uncertain as to the conduct prohibited, or which leave judicial and administrative of ficers free to determine, without any definitely fixed stan dards, what is prohibited and what is not. Giaccio v. Penn sylvania, 382 TJ.S. 399 (1966); Kraus & Bros. v. United States, 327 TJ.S. 614 (1946); United States v. L. Cohen Grocery Co., 255 TJ.S. 71 (1921). The objectivity require ment of 6(b)(5) of this Act, 29 T7.S.C. 655(b)(5), was obviously designed to insure that any standards promul gated pursuant to the Act observe the well established prin ciple that any statute or administrative regulation ". . . which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v. General Construction Co., 269 TJ.S. 385, 391 (1926); Kraus <& Bros. v. United States, supra. In addition, if arbitrary and discriminatory enforcement of administrative regulations is to be prevented, regula tions must provide explicit standards for those who apply them. A vague regulation impermissibly delegates basic policy matters to those responsible for its enforcement for resolution on an ad hoc and subjective basis with the at tendant dangers of arbitrary and discriminatory applica- 33 tion. Giaccio v. Pennsylvania, supra.TM By insisting on objective criteria whenever practicable, 6(b) (5) of the Act has the dual purpose of insuring that the Secretary ob serves the dictates of fundamental due process as well as requiring that the Secretary ". . . take reasonable steps to enable the [Courts] to carry out the task [of meaningful judicial review] that Congress has imposed upon them." Associated Industries, supra, at 354. Despite these clear and well-established Constitutional and statutory requirements, the Secretary has promulgated a Standard which fails to meet the basic clarity and spec ificity requirements in two vital areas. First of all, the Standard contains absolutely no discernible criteria for an employer to use in determining what engineering controls and work practices required to be implemented are "feas ible." Determination of "feasibility" is clearly a difficult matter, involving as it does a balancing of many complex factors, including, among others, worker safety, technolog ical capability and economic cost. I.U.D. v. Hodgson, supra, at 477-78. Yet, this Standard does not in any way inform employers, employees, OSHA or the Courts how this bal ance is to be struck in any particular case. Secondly, the Standard also fails to set forth in definite terms the objective sought to be achieved through the im plementation of whatever "engineering controls and work practices may be feasible." The exposure levels for whichSO SO Where First Amendment freedoms are not involved, a due process chal lenge of this kind is generally made by a convicted party and is usually limited to a review "on its face.'' See, Ashton v, Kentucky, 384 U.S. 195 (1966); United States v. National Dairy Products Cory., 372 U.S. 29 (1963) ; Stromberg v. California, 283 TLS. 359 (1931). The "Standard for Exposure to Vinyl Chloride'' is presented to this Court for review under the authority of 4 6(f) of the Occupational Safety and Health Act, 29 U.S.C. 4 655(f). Therefore, the distinction between First Amendment and non-First Amend ment cases is not relevant here. The Standard is here for review "on its face" pursuant to statutory authority to challenge "the validity of such standard. ' ' 34 employers must strive in the absence of the ability to achieve the permissible limits are totally indeterminate and undefined, and an employer will never know that he has failed to reduce exposure levels in his plants to the "lowest practicable" levels until he is cited for violating the Stan dard. To confirm the lack of required objectivity in this portion of the Standard, the Court need only look to the Secretary's statement that . any estimate as to the lowest feasible level attainable must necessarily involve subjective judgment."81 Thus, the Standard is deficient in that it does not provide any ascertainable and objective criteria by which an em ployer can determine if the engineering controls and work practices he has instituted are sufficient to comply with the Standard, or that the resulting exposure levels are the "lowest practicable" levels required by the Standard. In short, unless an employer has reduced vinyl chloride expo sure to the admittedly unattainable "permissible exposure limit" (1 ppm-5 ppm), he can have no assurance that he is not in violation of the Standard, no matter how stren uous his efforts to comply. The Secretary has admitted this, since he also concedes in the preamble to the Stan dard that it is not clear . . to what extent exposures can be feasibly reduced. ' '82 39 Fed. Beg. 35892. 62 39 Fed. Beg. 35892. Other examples of the type of ambiguity that is bound to lead to enforcement difficulty are the provisions in $$ 1910,93q(e) and (g) of the Standard. It is difficult to believe that the Secretary in tended the results these sections could bring into play. Under ( 1910.93q(e) (2) "authorised personnel" are those persons -with a duty requiring them to enter a "regulated area," i.e. one where VCM concentrations exceed the permissible limit, and specific authorization from their employers to do so. In addition, entry is limited for purposes of life rescue when the atmospheric concentration of VCM is unknown or in excess of 36,000 ppm. 29 C.F.R. $ 1910.93q(g) (5). These two requirements, individually and in combination, effectively prevent emergency repairs. In the instance wbeTe an emergency, such as a broken valve or ruptured pipe, occurs, anyone who is not specifically authorized to enter or who has I 35 Under similar circumstances, the Court of Appeals for the Sixth Circuit, in Chrysler Corp. v. Dep't of Transpor tation, 472 F.2d 659 (6th Cir. 1972), struck down a motor vehicle safety standard involving airbags as an alternative to passive restraints in automobiles. The manufacturers there challenged the air bag standard because the test pro cedure and the test device specified for measuring compli ance with the standard were not sufficiently objective. The specification to be met there was set forth in objective terms, but there were several technical ambiguities as to the permissible flexibility in certain portions of the test pro cedure. In vacating the standard the Court of Appeals re jected the use of subjective judgment, the very basis on which the Secretary proposes to proceed here, saying, at 675: "In the absence of objectively defined performance requirements and test procedures, a manufacturer has no assurance that his own test results will be duplicated in tests conducted by the Agency. Accordingly, such objective criteria are absolutely necessary so that `the question of whether there is compliance with the stan dard can be answered by objective measurement and without recourse to any subjective determination,' " (Emphasis added.) A similar deficiency in a stationary source standard gov erning emissions from cement plants promulgated by the Environmental Protection Agency was sufficient to require reconsideration of the standard by the Agency in Portland Cement Association v, Ruckelshaus, 486 F.2d 375, 400-01 (D.C. Cir. 1973). The standard in question provided that no duty to conduct emergency repairs is prohibited from entering and cannot take quick action to repair the damage. In the same instance, if the concentration of VCM is unknown or in excess of 36,000 ppm, authorised personnel may enter the area only for purposes of life rescue. They can help persons to escape but cannot take any pre ventive measures whatsoever. Again, quick action cannot be taken to repair the damage or otherwise reduce the hazard of fire or explosion. Thus, a greater hazard than currently exists is created by the Standard's regulated area access and entry restrictions. This is patently ridiculous. GENC 009680 ..... Wr. : : ; 36 particulate matter discharged from a kiln must not exceed . . 10 percent opacity, except that where the presence of uncombined water is the only reason for failure to meet the requirements for this subparagraph. ..." The Court refused to approve the standard because inspectors were unable to determine with any reasonable degree of accuracy whether any particular level of emissions met the standard. Not only will the inherent vagueness of the Vinyl Chlo ride Standard leave employers in the dark as to what is ex pected of them, but the Standard invites arbitrary and discriminatory enforcement on an ad hoc basis by the OSHA officers charged with determining compliance. As presently framed, the Standard will require those charged with responsibility for its enforcement to exercise extraor dinary efforts to avoid contradictory enforcement since these officials have no more guidance on the application of the Standard than do employers. In effect, the Secretary has impermissibly delegated his responsibility to promul gate standards to the discretion of individual compliance officers scattered throughout the United States. Finally, the Secretary has acknowledged that any esti mate as to the lowest exposure levels attainable "... must necessarily involve subjective judgment."M The failure of the Standard to specify any criteria upon which such judgments might be based will prevent any meaningful judicial review of citations for violations of the Standard. The Standard must, therefore, be set aside and the case re manded to the Secretary to take such actions as may be necessary to enable employers and reviewing courts alike ". . .to carry out the task that Congress has imposed on them." Associated Industries, supra, at 354. es 39 Fed. Beg. 35892. V THE VINYL CHLORIDE LABELING REQUIREMENTS FAIL TO COMPLY WITH THE REQUIREMENTS OF THE OCCUPATIONAL SAFETY AND HEALTH ACT AND ARE, THEREFORE, UNLAWFUL A. The Socrelary Exceeded His Statutory Authority in That the Labeling Which Would Be Required by the Standard Does Not Adequately Inform Employees as Required by the Occupational Safety and Health Act The Occupational Safety and Health Act of 1970 indi cates that any standard promulgated by the Secretary of Labor in the area of employee safety and health shall pre scribe the use of labels, as necessary, to insure that em ployees are apprised of all hazards to which they are ex posed, all relevant symptoms, the appropriate emergency treatment, and the proper conditions and precautions of safe use or exposure, OSH Act 6(b) (7); 29 U.S.C. 655(b) (7). The purpose of safety and health labeling is, therefore, instructive and requires responsible, affirmative information about the actual danger and the methods of treatment and prevention. Here, the Secretary would re quire only an identification of the chemical, "vinyl chlo ride," and inclusion of the words "Cancer-Suspect Agent. ' 'M This type of labeling will not practically inform those working with VCM of the danger, the methods of work hazard prevention, or the treatment for any possible hazard that may arise. The scare word "cancer" passes no constructive information to the worker, tells an em ployee nothing about what the real danger is, how he may be injured, or what he should do to prevent injury. On the purpose of labeling, the House Committee Report stated: "Basically, the worker needs to have adequate ad vance knowledge of hazards in order to protect himself from damaging exposures. He needs proper protective equipment and the information necessary to treat* *4 29 C.P.R. $ 1910.93(1); 39 Fed. tteg. 35898. emergencies if they arise. He should not be economi cally coerced into a hazardous job. Since inadvertent exposure to unknown products or processes often causes severe and immediate reactions, the exposed worker must know what type of exposure he has suf fered in order to use proper treatment. The worker especially needs this information in cases of toxic substances which have delayed or latent ill effects. " H. Rep. No. 91-1291, 91st Cong., 2 Sess. 29 (1970). The Occupational Safety and Health Act specifically in structs the Secretary to consider ". . . experience gained from this and other health and safety laws. ' ' OSH Act 6 (b)(5); 29 TT.S.C. 655(b)(5). A review of the standards dealing with another carcino gen, asbestos fibers, indicates that the Secretary has not followed his own previous experience. In dealing with asbestos fibers, he did properly inform the employees of the actual danger and how to prevent health hazards. The labeling specifications for asbestos fibers are: "Caution--Contains Asbestos Fibers Avoid Creating Dust Breathing Asbestos Dust May Cause Serious Bodily Harm." These asbestos labeling standards were challenged by the unions which proposed including the words "danger" or "warning" and making reference to particular health problems, such as cancer or asbestosis. The government argued, and the Court agreed, the language selected by the Secretary was proper. I.U.D. v. Hodgson, supra, at 484. It is on this basis that the plastics industry proposed alternative labeling in this case.* The following is a 5 29 C.F.E. $ 1910.93a(g)(2). 6 While it is tree that the "14 carcinogens" (29 C.F.E. 1910.93c through 1910.93p) are required to employ cancer-type labeling for other than mixtures containing only low levels of the substances, this case is more analgous to that of asbestos, the "14 carcinogens" being substances that are from 100 to 1000 times more carcinogenic than vinyl chloride. JA 3975-76. comparison of the labeling prescribed in the Standard and the industry proposal. (1) Entrances to regulated areas: Industry Proposal Vinyl Chloride Vapor Hazard Use Assigned Protective Equipment When Alarm Signal Is Activated When Signal Is Activated, Do Not Remain In Alarm Area Unless Tour Work Requires It Breathing Excessive Quantities Of Vinyl Chloride Vapor May Be Hazardous To Tour Health Authorized Personnel Only Secretary's Standard Cancer-Suspect Agent Area Authorized Personnel Only (2) Areas containing hazardous operations: Industry Proposal Vinyl Chloride Vapor In This Area Protective Clothing And Respirators Required Authorized Personnel Only Secretary's Standard Cancer-Suspect Agent In This Area Protective Equipment Required Authorized Personnel Only (3) Containers of PVC resin waste from reactors: Industry Proposal Vinyl Chloride Contaminated Material May Be Hazardous To Your Health Dispose Of Or Decontaminate Using Adequate Ventilation Or Protective Equipment 40 Secretary's Standard Contaminated with Vinyl Chloride Cancer-Suspect Agent (4) Containers of PVC: Industry Proposal Polyvinyl Chloride Caution Contains Vinyl Chloride Avoid Breathing Vapor Or Dust Closed Containers Op Polyvinyl Chloride May Contain Vapor Levels Op Vinyl Choride "Which May Be Hazardous To Your Health Open Only In Well-Ventilated Areas Or Wear Respiratory Protection Secretary's Standard Polyvinyl Chloride (or Trade Name) Contains Vinyl Chloride Vinyl Chloride Is A Cancer-Suspect Agent (5) Containers of Vinyl Chloride: Industry Proposal Vinyl Chloride Danger Extremely Flammable Gas Under Pressure Avoid Contact With Liquid Or Vapor Unless Fully Protected By Authorized Equipment In The Event Op Acute Exposure Seek Medical Assistance Immediately Secretary's Standard Vinyl Chloride Extremely Flammable Gas Under Pressure Cancer-Suspect Agent A comparison of the type of labeling tbe industry recommended with the simplistic "scare headline" type prescribed in the Secretary's Standard must inevitably lead to the conclusion that the former might aid an employee to deal with a hazard, while the latter would be of no help at all. It is, therefore, respectfully submitted that the labeling provisions in the Standard do not com port with either the spirit or express provisions in the enabling Statute, will accomplish only great mischief with out concomitant benefit to the work force, and should, therefore, be declared invalid and unlawful. B. The Secretary Exceeded His Statutory Authority And Illegally Usurped That of Another Federal Department By Adopting the Labeling Provisions in the Standard. In addition to the basic defect discussed above, in pro mulgating the labeling requirements for vinyl chloride, the Secretary also failed to observe another important statu tory limitation on the scope of his authority. Under the terms of the Act, the Secretary is explicitly precluded from exercising power to govern working conditions of em ployees over which other federal agencies exercise statu tory authority to prescribe or enforce standards or regula tions affecting occupational safety and health. OSH Act 4(b)(1); 29 U.S.C. 653(b)(1). In its report, the Senate Labor Committee highlighted this statutory limitation as follows: . . [I]t does not modify other Federal laws pre scribing safety and health standards. The bill does not authorize the Secretary of Labor to assert authority under this bill over particular working con ditions regarding which another federal agency ex ercises statutory authority to prescribe or enforce standards affecting occupational safety and health." Sen. Hep. No. 91-1282, 91st Cong. 2d Sess. (1970); 3 U.S. Code Cong. & Admin. News 5199 (1970). 42 The labeling requirements in the Standard under review here would control labeling on all containers of vinyl chloride61 and, thereby, apply to the transportation of VCM in interstate commerce. The Secretary would require either the label; Vinyl Chloride Extremely Flammable Gas Under Pressure Cancer-Suspect Agent or a label in accordance with the Department of Transpor tation (DOT) Regulations, 49 C.F.R. 173.41)0, et seq,, and the addition of the words "Cancer-Sicspect Agent."TM The Secretary has clearly extended his Standard to the area of transportation labeling for VCM while recognizing that the field is occupied by DOT. In fact, DOT has been expressly authorized by Congress to formu late regulations for the safe transportation of hazardous materials, DOT Act; 49 U.S.C. 1655(e)(4), and has ex tensive regulations for the labeling of VCM in transpor tation at 49 C.F.R. 172.5, 173.402(3), .404 and .407. If the Secretary of Labor is permitted to superimpose his Department's labeling preferences or desires wherever and whenever he chooses, this could adversely affect and disrupt the entire regulatory scheme of DOT in the stand ards it sets for hazardous substances in transportation. In exceeding his statutory authority to act only in nonregulated areas, and in infringing on already existing label ing for VCM, the Secretary has promulgated an unlawful Standard in 29 C.F.R. 1910.93q(l). Thus, the labeling requirements for VCM in containers must be held unlaw ful along with the other provisions heretofore discussed. 079 C.F.R. } 1910.93q(a)(3) and (1) (5); 39 Fed. Reg. 35896-98. 56 29 C.F.R. $ lP10.93q(l) (5); 39 Fed. Reg. 35898. CONCLUSION In consideration of the Secretary of Labor's failure to promulgate a Standard based on the substantial evidence present in the Record, his failure to promulgate a tech nologically or economically feasible Standard, his failure to provide a sufficiently clear statement of proscribed conduct to inform those regulated of what they must do to comply, and his failure to provide for proper labeling, it is hereby urged that 29 C.F.R. 1910.93q be declared inoperative as unlawful and invalid, and that this matter be remanded to the Department of Labor for further proceedings leading to action which would comport with the statutory require ments. Respectfully submitted, Martin I. Shelton Shea, Gould, Climenko & Kbameb 330 Madison Avenue New York, New York 10017 Jerome H. Heckman Keller and Heckman 115017th Street, N.W. Washington, D. C. 20036 Attorneys for Petitioner Of Counsel: Joseph E. Hadley Peter Thomas Smith Keller and Heckman 115017th Street, N.W. Washington, D. C. 20036 APPENDIX A STATUTES AND REGULATIONS * INDEX Page U.S. Constitution, 5th Amendment .............................. la Occupational Safety and Health Act 29 U.S.C. 653(b)(1) ............................................. 29 U.S.C. 654(a) (1) ............................................ 29 U.S.C. 655(b) (5) ............................................. 29 U.S.C. 655(b) (7) ............................................ 29 U.S.C. 655(f) .................................................. 29 U.S.C. 666 ........................................................ 49 U.S.C. 1655(e) (4) ........................................... 2a 2a 3a 3a 4a 4a 7a 29 C.F.R. 1910.93.................................................. 7a i 29 C.F.R. 1910.93a(g) (2) ................................... 17a 29 C.F.R. 1910.93c-p............................................ 17a 29 C.F.R. 1911.18(b) ........................................... 22a 49 C.F.R. 172.5 .................................................... 23a 49 C.F.R. 173.402(3)............................................ 25a 49 C.F.R. 173.404 .................................................. 25a 49 C.F.R. 173.407 ................................................ 26a Constitution of the United States, Amendment 5 AMENDMENT V--CAPITAL CRIMES; DOUBLE JEOPARDY; SELF-INCRIMINATION; DUE PROC ESS; JUST COMPENSATION FOR PROPERTY No person shall be held to answer for a capital, or other wise infamous crime, unless on a presentment or indict ment of a Grand Jnry, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just com pensation. Pertinent portions of the Federal Register and 29 C.F.R. $ 1910.93q, et teq. cited in thia brief are contained in the Joint Appendii.  !C'T . . 2a Occupational Safety and Health Act 29 U.S.C. 653 653. Geographic applicability; judicial enforcement; ap plicability to existing standards; report to Congress on duplication and coordination of Federal laws; workmen's compensation law or common law or statutory rights, du ties, or liabilities of employers and employees unaffected. (b) (1) Nothing in this chapter shall apply to working conditions of employees with respect to which other Fed eral agencies, and State agencies acting under section 2021 of Title 42, exercise statutory authority to prescribe or en force standards or regulations affecting occupational safety or health. 29 U.S.C. 654 654. Duties of employers and employees (a) Each employer-- (1) shall furnish to each of his employees employ ment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; 29 U.S.C. 655 655. Standards--Promulgation by Secretary of national consensus standards and established Federal standards; time for promulgation; conflicting standards. Procedure for promulgation, modification, or revocation of standards (b) The Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard in the following manner: (5) The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this 3a subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best avail able evidence, that no employee will suffer material impair ment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Development of standards under this subsection shall be based upon re search, demonstrations, experiments, and such other infor mation as may be appropriate. In addition to the attain ment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the stand ard promulgated shall be expressed in terms of objective criteria and of the performance desired. (7) Any standard promulgated under this subsection shall prescribe the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions of safe use or exposure. Where appropriate, such standards shall also prescribe suitable protective equipment and control or technological procedures to be used in connection with such hazards and shall provide for monitoring or measuring employee ex posure at such locations and intervals, and in such manner as may be necessary for the protection of employees. In addition, where appropriate, any such standard shall pre scribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at his cost, to employees exposed to such hazards in order to most effectively determine whether the health of such employees is adversely affected by such exposure. In the event such medical examinations are in the nature of research, as determined by the Secretary of Health, Edu- rw-: * t ?v i 1 4a cation, and Welfare, such examinations may be furnished at the expense of the Secretary of Health, Education, and Welfare. The results of such examinations or tests shall be furnished only to the Secretary or the Secretary of Health, Education, and Welfare, and, at the request of the employee, to his physician. The Secretary, in consultation with the Secretary of Health, Education, and Welfare, may by rule promulgated pursuant to section 553 of Title 5, make appropriate modifications in the foregoing require ments relating to the use of labels or other forms of warn ing, monitoring or measuring, and medical examinations, as may be warranted by experience, information, or med ical or technological developments acquired subsequent to the promulgation of the relevant standard. Judicial review (f) Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of the peti tion shall be forthwith transmitted by the clerk of the court to the Secretary. The filing of such petition shall not, un less otherwise ordered by the court, operate as a stay of the standard. The determination of the Secretary shall be conclusive if supported by substantial evidence in the rec ord considered as a whole. 29 TJ.S.C. 666 666. Civil and criminal penalties. (a) Any employer who willfully or repeatedly violates the requirements of section 654 of this title, any standard, rule, or order promulgated pursuant to section 655 of this title, or regulations prescribed pursuant to this chapter, -r 'jrXCi GEWC 009694 5a may be assessed a civil penalty of not more than $10,000 for each violation. (b) Any employer who has received a citation for a seri ous violation of the requirements of section 654 of this title, of any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, shall be assessed a civil penalty of up to $1,000 for each such violation. (c) Any employer who has received a citation for a vio lation of the requirements of section 654 of this title, of any standard, rule, or order promulgated pursuant to sec tion 655 of this title, or of regulations prescribed pursuant to this chapter, and such violation is specifically deter mined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation. (d) Any employer who fails to correct a violation for which a citation has been issued under section 658(a) of this title within the period permitted for its correction (which period shall not begin to run until the date of the final order of the Commission in the case of any review proceeding under section 659 of this title initiated by the employer in good faith and not solely for delay or avoid ance of penalties), may be assessed a civil penalty of not more than $1,000 for each day during which such failure or violation continues. (e) Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, and that violation caused death to any employee, shall, upon conviction, he punished by a fine of not more than $10,000 or by imprisonment for not more than sis months, or by both; except that if the conviction is for a violation committed, after a first conviction of such person, punishment shall be by a fine of not more than $20,000 or by imprisonment for not more than one year, or by both. :K"r " '- . ^ :" -.lipr--; - A#::-- > . '- A A"'.' ': c A' ^" J- - " - * ` '''"'.'I ` j 6a (f) Any person who gives advance notice of any inspec tion to be conducted under this chapter, without authority from the Secretary or his designees, shall, upon conviction, be punished by a fine of not more than $1,000 or by impris onment for not more than six months, or by both. (g) Whoever knowingly makes any false statement, rep resentation, or certification in any application, record, re port, plan, or other document filed or required to be main tained pursuant to this chapter shall, upon conviction, be punished by a fine of not more than $10,000, or by imprison ment for not more than six months, or by both. (h) Any employer who violates any of the posting re quirements, as prescribed under, the provisions of this chapter, shall be assessed a civil penalty of up to $1,000 for each violation. (i) The Commission shall have authority to assess all civil penalties provided in this section, giving due consid eration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations. (j) For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the pres ence of the violation. (k) Civil penalties owed under this chapter shall be paid to the Secretary for deposit into the Treasury of the United States and shall accrue to the United States and may be recovered in a civil action in the name of the United States brought in the United States district court for the district . 1 4 -- 60s)C 009696 where the violation is alleged to have occurred or where the employer has its principal office. 49 U.S.C. 1655 DEPAHTMENT OF TRANSPORTATION ACT 1655. Transfer of functions--Powers and duties of the Secretary of Commerce and other offices and officers of the Department of Commerce relating to highways, ground transportation generally, aircraft, pilotage, and traffic and highway safety generally. Interstate Commerce Commission; functions, powers, and duties relating to safety appliances and equipment on railroad engines and cars, protection of employees and travelers, hours of service, medals for heroism, explo sives and other dangerous articles, standard time zones and daylight saving time; safety of operation and equipment. (e) There are hereby transferred to and vested in the Secretary all functions, powers, and duties of the Inter state Commerce Commission, and of the Chairman, mem bers, officers, and offices thereof, under-- (4) the following provisions of law relating gener ally to explosives and other dangerous articles: Sec tions 831-835 of Title 18. Code of Federal Regulations G--Subfabt Occupational Health and Environmental Control 29 C.F.R 1910.93 Air contaminants. An employee's exposure to any material listed in table G-l, G-2, or G-3 of this section shall be limited in accord ance with the requirements of the following paragraphs of this section. (a) Table G-l: (1) Materials with names preceded by "C"--Ceiling Values. An employee's exposure to any material in table G-l, the name of which is preceded by a "C" (e.g., C Boron trifluoride), shall at no time exceed the ceiling value given for that material in the table. (2) Other materials--8-hour time weighted averages. An employee's exposure to any material in table G-l, the name of which is not preceded by "C", in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table. (b) Table G-2: (1) 8-hour time weighted averages. An employee's ex posure to any material listed in table G-2, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limit given for that material in the table. (2) Acceptable ceiling concentrations. An employee's exposure to a material listed in table G-2 shall not exceed at any time during an 8-hour shift the acceptable ceiling concentration limit given for the material in the table, ex cept for a time period, and up to a concentration not exceed ing the maximum duration and concentration allowed in the column under "acceptable maximum peak above the acceptable ceiling concentration for an 8-hour shift". (3) Example. During an 8-hour work shift, an employee may be exposed to a concentration of Benzene above 25 p.p.m. (but never above 50 p.p.m.) only for a maximum period of 10 minutes. Such exposure must be compen sated by exposures to concentrations less than 10 p.p.m. so that the cumulative exposure for the entire 8-hour work shift does not exceed a weighted average of 10 p.p.m. (c) Table G-3: An employee's exposure to any mate rial listed in table G-3, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted aver age limit given for that material in the table. 9a (d) Computation formulae: (1) (i) The cumulative exposure for an 8-hour work shift shall be computed as follows: where: E = CaTa + + . . . C.T. 8 E is the equivalent exposure for the working shift. C is the concentration during any period of time T where the concentration remains constant. T is the duration in hours of the exposure at the concen tration C. The value of E shall not exceed the 8-hour time weighted average limit in table G-l, G-2, or G-3 for the material involved. (ii) To illustrate the formula prescribed in subdivision (i) of this subparagraph, note that isoamyl acetate has an 8-hour time weighted average limit of 100 p.p.m. (table G-l). Assume that an employee is subject to the following exposure: Two hours exposure at 150 p.p.m. Two hours exposure at 75 p.p.m. Four hours exposure at 50 p.p.m. Substituting this information in the formula, we have 2X150+2X75+4X50 81.25 p.p.m. 8 Since 81.25 p.p.m. is less than 100 p.p.m., the 8-hour time weighted average limit, the exposure is acceptable. (2) (i) In case of a mixture of air contaminants an employer shall compute the equivalent exposure as follows: Ci Ca C, Em =----- 1-------h -- Li La Li, Where: E,, is the equivalent exposure for the mixture. C is the concentration of a particular contaminant. L is the exposure limit for that contaminant, from table G-l, G-2, or G-3. The value of Em shall not exceed unity (1). (ii) To illustrate the formula prescribed in subdivision (i) of this subparagraph consider the following exposures: Material Actual concentration of 8-hour eipoBure 8-hour time weighted average exposure limit Acetone (Table G-l) .... . . 500 p.pm.......... 1,000 p.pm. 2-Butanone (Table G-l) .. .. 45 p.pm....... 200 p.p.m. Toluene (Table G-2) ........ 200 p.pm. Substituting in the formula, we have: 500 45 40 Em ----------- 1---------- 1-------- 1,000 200 200 Em = 0.500 +0.225 + 0.200 Em = 0.925 Since Em is less than unity (1), the exposure combination is within acceptable limits. (e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever fea sible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with 1910.134. iafeseMi *-L ..+&. -*-T'-,V.: ^| -- -.- 11a Ti*U 0-1 SobvtftDM P-P4il mcjM* AceUtdehyde.. Acetic eda........... *...................... Acetic enhydrtde................... Atu................. .... .......................... _* Aretonltrile.......................................... Acetylene dlcbloride, me 1, > 300 10 -I 1,000 00 ' Dlchlcroethylene............ .............. .... Acetylene tetrebromlde,.____ .. 1 Acrolein..................... ................... 0.1 Aerylemldo--6kta..................................................... Acrylonitrile--Skin................... Aldrin--Skin.,,_____*_____ _ 00 Allyl eleobol--Skin................. .... 3 AUy] chloride................................... 1 *C Allyl ylyddyl ether (AOX). 10 Ally) propyl dieulflde............... ... 3 3-Ammoetbuiol, l*e Eth*nop mine.............. ............................. 1-Amtnoprridine...-.____ __ (X & Ammonle................ *.**..........00 Ammonium (ia* mete).......... ....................................... ....................... n*Amyl eoeUte...-.................. 100 Sec-Amyl 126 Aniline--Skin............. .. f AnkfdJne (o, p-fcomfrx)--Skill.-*.......... ... Antimony cod compounds <M lb).................................... ~................................ ANTU (elphs nephthyl thlooree) Arsenic mod compounds (* am)....................... Arsine..*, ............................. 0.00 Aslnphoe-vnethyl--8 kin.............. Berium (soluble compound*)............................ fe'Bevuoqutno'nc* tee Quinon*. BrasoyJ peroxide..:m.., ........................ Betuy! chloride................................... 1 Btphe&yl, see Diphenyl..*....*............... Blspbenol A. ee Dltlyddyl ether,..****............................................ .. Boron oxide.................................... -............... C Boron trifluoride................. .. x1 Bromine............................ Al Bromoform--Skin... .......... a A* BoUdlene 0,Abatedkne)..... 1# 000 AS Batenethiol, ice Butyl mer* Mntin........ ............................................. * .***_. S-Butenone.......................... ----2-ButOtr tthenol (Butyl Cel- losolce)--Skin........... Butyl JtetUte (n-butyl ooetete)* eee-Butyl eretet*..........MOO tert-Butyl ecetete....--*............... Butyl Alcohol*--*******------------- 1 em-Butyl Alcohol.-*---*----- ** * UO JJJ JJ 0 iert-Batyl eJcobol___ .' .. G BatyUmKM--6klu...MH*M. C" tertt*-Bou.t.y...l..c...h...r.q...m....o...t.#....(.ee n-CBarOtyi))^--ffliy8frckdtidnd.yy,,ll ether (BGZ)_ MBouVtyBlQmbeKrceetpnteenM.. Celctum ermnete... Coleiam oxide...... *C*tCrheAmrpyhl (oSr.eLrin_O__)_. MO 0 3 *. ___ _________ Tails G^l--Boutinoed Subetenoe p.pjn_* Cerbon bleck_%.............. Cerbon dioxide..4,000 Cerbon monoxide.. CbknUne--Skin*........ ......... 10 ChlorineUd cemphene--Skin. Cblorineted diphenyl oxide__ Chlorine.*............. ............__ Chlorine dioxide.*__________ C Chlorine trifluoride.. 1 Al 0.1 C Chloroeceteldehyde......... 1 *Cblorooce(opbenone (pbenecylchloride),..!...... Chlorobenten# (monochloro* AM beiuene) ..........*____...*.., Tt 0-Chtorobencylldene melononltrlle (OCBM)..................AM Cbforobromomeihene.... 300 3-Chloro1.3-butedleoel eee Cbloroprene....... *..................... Cblorodlphenyl (43 percent Chlorine)--8km.*............ ......... Cblorodlphenyl (W percent Chlorine)--fikm......... ........................... 1-Chk>ro.2T3-epoiyprcpen, eee Epiehlorhydria...___ ....____............ AChloroethenol, see Ethylene ehlorohydrin___*............. I......... Cbloroethylene, eee Vinyl chloride................... ............ C Chloroform (trithloro- metbene)___...________..... 40 l-Chloro'l.nitroptopeao..___ _ 30 ChloropKrin...,__**;....*.... A1 Cbloroprene (2-cblaro-l,S- batediene)--Skin__ .......... M Chromium, eol. chromic, chromous tells as Cr..... ........................ Motel end Insoh eelte......... Cool Ur pitch Toletuee (ben- - uneeoiuble freetkm) entbro* eene. BeP, pbenenthreae, aldine, enrytene, pyrene*.*............. Cobelt, metel fume end dust...___ ... ... Copper fame..***........ ............ Duita end Misti,..._,*._........... . .. Cotton dust (rtw)............ .I Cr*c<9 bcTblelde___ *________....... CreeoT (ell ieonten)--6kio....,_ Crotooeldchyds........... . 3 Cumme--Skin...,___ M Cytnlde (ee CN)--8kln._.,....................... . Cyclohexene................... 300 Cydobeienol................... . so Cydohexenooe................. 40 Cyelobexene__ _____ .......... 300 Cydcpeotodlepe............... 74 lAD..................................... . .... _ DDT-Skin.......................................... " DDVP, ee* Dlchlorros........ Dceeboreoe--8kio.,,._......... AM DtmetoogH-Skln___ .................. DUeetone eleohol (4-faydroxy. 4-tothyl-2-penuoone)........ to l^dlmnlnoethene, me Xthylencdlemlne....... . DleeoaMtbene,....... ............ . ZMbomne....*............ aI 44 A4 At Al 3 A3 A4 . C A* 340 K,* rnnlwiin m *nil of V;r^;v'tv v 12a fuH 0-1--Catia>*4 aVW>* Tiiu 0-1--C*.tla4 Ouhtfpc* 0.0.BH BI|Vlft PlbatJlphthelete................................ ... 0 ft-Dlehlorobttitene. M P'Diebtarobauene................... 71 Pichtorodlfludrometheiie....... LOOS J^Plchloro-WHJjDetbyl hydemolri........................ v IS 1,1-Dfchtoroethftne..................... 100 l,3Dlchl0roetbj)*De_.......... 300 C Dtchloreethyltbi~8kta_.. U , 'I >09 410 4,000 000 - 100 , ,90 Dlehloratattbiuie, k v '* *. Mthjl(ntb)orMt_............................ .................... PlehloromonoflaoremethftiM... 1,000 - 4,300 C lJ-Uicblor^I-nitroethftiM^.. * 10 to l>Dlehk>roprop*nt. m* Propylenedkhlorkle.--...................... __________ 1.... DtchloroUtreflaorodbene___ .. 1,000 7.000 Ptehlorroe (DDVP)"Bklo*.......................... * . 1 Dkldrin--Skin......... .............. *................ 0,31 Pkthylamlne............................. 31 74 DklhyknUuoethmoi--Skin... 10 00 Dklhykther, ece Ethylether, .......................... ... PlfluorodiQrQroauietheD#..,.,..' 100 C PttljrWjUth(DOE)........ aI 000 i Plbydroiybtmene, * : " -v Bidroqulfiooc.......__ ..................... Dlfcobutyl kelooe....................... *0 . , ` 300 ' DlkopropyUmtLv--8kh....._,, I , 30 Plmethorymetheae, **e :& > Mtbyli.......................................................... > Dimethyl >WUaHV fata,,... 10 W Dlmetbylemlne ................ . 10 U*. Ptn^thyUonlxkebttMD*, * / .\ XrltdeM........................ ................. Dlo>ethyl*nfllne(N-diiaethyl- oUineJ-flkin.......................... I a: Dimethyibeniene, m Xykhe......... ........... ........... ... Dimethyl l,3-difaromo-?,3-di- ehlorotihyl pb<Nph*M, (Dtbrom)............................... . I PlnTlhTUntmemlrU Fkln 10 .10 . O^Dimetbylbeptenone, *ee . Ul ; Dlkotatyl ketone............................................- l,l*DlmelhylhydrMtne--8kiiL_. 0, S 1 Dtroethylphthekte................... .......... DlmetbykuUftte--Slrtn......... . 1 -f $ y DtoUrobentfta# (ftp fcamerr}-- , / Sktn................................ 1 Diidtro-o-ereeo}--fiktiL,......._______ 4S PioitrotolDcnr^AlD. _ _______ Li Diegan# (Dkthyleae dtadd#)-- Skin100 300 . Dtpbayl....,.,.................. 0.1 '1 PtpheDylmetbene dlfcecyaniie (eee Methylene btrpbenyl koeyenate (unn.................... . Dtpmpylene glyooliiietbyl . - ether--SUn............................. - 100 010 Dbeee, octyl phthalate (Pi-3' eihylheyylphthftkk).............. I Xndnn--Skts--.........-.........__ **** Cl Bptehlorhydrln flkia.......... i It EPN--Bfcin................ ______ ______ ...... U t'O-gpoxypropaoc, eee ` ,v,, , . ., Propykneoxlda... ____ V-Epoxy-i-propftoot, in OJyddol................................. XthftMthloh mc Xthy.l.m...r-.. XthanoUmliM......................... . 9 3-Ethorycthft0Ofr4)kto......... 300 3-Xtboxytby} wuu (Cllo- N)t ftoctftp ^Bkla.......... 100 XthylftMtftt* ....... ........ 400 Ktbyl oorkk--6ktn ....... u Xtbyl ftkobol (otbuaon..-.--.. 1,000 XthykxnlQ*.................... w Ethyl aM-ftinyl kotooo (4- aothyl-i-beptaiMiM)-............ Ethyl ho>Dc...................... 100 Ethyl hramkki........ . 300 Ethyl bctyl ktot (3- EopUociM)............................. 0 Ethyl chlorloc............. 1,000 Ethyl other........ ........................ 400 Ethyl fonntU....................-- >m O Ethyl mcr^pun.,.,........ . 10 Ethyl tlllcftic............................ . 100 Ethytoo* ebkrobydrtn--Bkin. . 4 Ethykpodlurtpo....... ......... . 10 Ethyko* dlfaromldft, m 1> DibraBottbiu.:...................... Ethyfeo* dlchlorkU, om 1> PkhlraethftM................. 0 3C Etbyl glyeol dtnitnlc .Mkd/bt NiUtwlyOefli^--Bkln... l Elhykoe flyeM noooiDethyl other ftOoUto, tm Mothyt eelkoly aocuto..................... Ethykn* tyntoe 6kin......... . at Ethykn* oxide.................... o Etbylldloe chloride, *e 1,1* DlehlortMthoae................ K*EthylzDorpboUoo--Bkln..-- 30 ----- -Porbom.. porTOTftftftdlc~u dart.....______ Ptaorlde ......... Ploarine____........................... 0,1 PtoorotrtchiqrrmuthQPi ....... Panaic odd.... .........--........... Ftfrfarol--Bkin........-.7--.... Pxtrfnryl oloobal_____ ......... OlyddoJ (XO-Epoxy-l* proponoll..................-- Olyool moooetbyl ether, m 3-EtbOJTtbftxioL.,,............ . Gathloc 9, m Axinpboo- methyl......................... Pt^llWP..',........................................TTT. Hepuchkr--Skin.................. . Heptane (n-beptepe]_.......... . Hcxeehloroetbene--6kln........ Hexechloronephtheleoo--8kin_.. Hexane (n-beiene)............. 3-Hexenoaem..*.r.............. . Hexone (llethyl kobatyl ketone)--....... ...................... ne-Bixyl oeetete...................... Hydnxloe-- Hydrateo broBtnld*....___ ____ 0 740 M0 l,oo MO 1,000 u uo " 41i 100 ' 330 HS MO n IM M M ` 1 to M U 14 4.1 Srr footnote* nt cm! of Inblo. "< r'*r -y - I :-^fesS3kSf'>-* - ,. * fi,-"r *.' :~ : | gljfvv; Kji -- HiT/ - - V S- i~ rr^rr'ff~ st--t-; - " l -*iy - -'A- i ' " 1 ur* i'" i GENC 009702 Tail* (hi--C>tlaot4 p.p.OL' BW-/M1 * Jj Hydro** chloride.....----H^dncco eyaoM#--Akin*...... Hydrofeo perbride (90%).......... 1' 119 . Hydrogen Hydrogulnona..... . ' AM C Iodine................ - ai Inn Mid* fnm* . . ------------------- bom7l bounyl ileoboL--*........... tsobutyl acetate... Isebutyl alcohoL......*-- bophtfOM..,,......... . Isopropyl iUU.w..w4 Isopropyl tkoiiol....*.4*MM.v. Uopropylomlne__-- Iiopropylether.____--Isopropyl glyddyl ethor (1G1). 11T411030000MO00900099 1 Ketone..14.*...,.-- Lead & _______ Lindane--Skin..,..-............. Lithium hydride............... ...... L.P.Q. (Uquifled petroloam *w). Mecnedum oxide fume........*-. 1 Muatbioa--8fcla.......................... . Melele anhydride-- 0.3* O Muckm! Medtyl oxlde. Methenethld, i merrmptan.. Methoryehtor................. j.Methoxyethend, hi Methyl TOcelloeolTO... Methyl IMUU........ .......... . Methyl acetylene (propyne},,-- 1.000 Methyl ae*tylene~propadiMe . mixture (MAFP)-.**--*-**-- 1,000 Methyl cfTl*t^-Skln--.. Methyiel (<ametboxymeth< LT1O0 Methyl doohol (methanol). Mcthylomtoe.. Mothyl amyl atoohol aaa Mothyl bobutyl eorblnoL..^. Matbyl (n-emyl) ketoo* (3- * Heptaaone) C Mothyl bromide--Akin-... Methyl butyl kotoae, ee* * Heiaaorte.. *.*.,----**-- Mothyl colloooloo--flUn-- Methyl oelloaolve acetate flkl> Mothyl chloroform-- HetbylcydobexeBe. Methyfcyclohexanol.-- o-MothykyclohojtonotMh-awiu* Mothyl othyl ketoaa (MIX), * oo a-Bataaone--*--*--- Mothyl formate.-...----------- Mothyl Iodide--Skin. Motbyl isobutyl corbHw>l Bkln Mothyl teobatyl ketoae, mo * Hexooe.*-- Motbyl ioocyowto-SklB. O Mothyl moroop****-"-- Mothyl Mothyl propyl ketmm, mo 1- FooUi T U ; * 1310it - tt$ 99T710404O0000 3,1mM01o0003.9 A0.9ll It 118I*101 * 100 Tail* O-l--Ceatlmoefl C or Methyl styrene. C Methylene blspbenyl* . > Isocyanate (MDI)...__ . Molybdooam; Soluble oompduodi-- Insoluble *"mpnait* _ Moaomothyl aniline--6kU*Cm C Moodmothyl hylratlno 8kln._............................. ... Morpholine--Skm. .......... . btho (coaltar)........*__ , Naphthalene..................... Nlcbl carbonyl............ Nickel, metol and soluble ' empds,MNi,____ Nicotine--8km... Nitric odd............................ Nitric oxide. p-Nttroenilfoo-Skia. Nltrobemeoe--8km_. ^-Nttroehlorobeasene--(w -r - Ntroetbane....... .................. Nitrogen dlocfde...-^.--.-.^. Nitrogen trifluortde,.-.*........ Nitroglycerin--Skin., Nttromethaae.... 1-NI tropropono... 3-Nltronropaoe... Nltroumtene--SktfL..-- Nltrolriehloromethaoe, mo Chloropkrln___.......... Octachtoronaphtbefene--8Un.. *Octone........... *011 mist, mineral.. Oamlam lotrotide. Oxalic echk........ Oxygen dlflaoride.. Otooo............ Paraquat--Sklo. t Paratnioa--Skm^M PecUboron#_______ __________ Pentachloronaphthalene--8kla., Poatoehlorophonol--Skin.... *Foatono.......... ......................... 1# I 3-Pentonone..^______ ________ Perchlororaethyl mercaptan*--. ' Perchlpryl fluoride..................... Petroleum distillates (naphtha). Phenol--Skto... GB'JC 009703 14a TeotP G-J--Continued Subsienco p.p.m.* mc./M* * norte arid--8kts........................ Plral (3-PlYalyLl> lndandtooa).................... ... platinum (Soluble salts) as Pt_____ '.................................. ai 0.1 0.003 Properfyl alcohol'-tela.*-**--. Ftopooo..,,................. .... n-Propyl tctUU......................... Propyl aleehol.-- B-Propyl nitrate....................... Propylene dlchloride.. Propylene Imlne--8km...*..--. Propylene oxide............ ... Propyoe, ate Methylaoetyleae..* Pyrathnun............... ......... LOOP 300 300 33 71 3 too l.00 M0 too no . 350ft 340 s Pyridine........ -- Qolnooe.-- > 1ft 0.1 0.4 RDX--tela,..................... ,, L< Rhodium, Metal tame and Attrtt, oi Bb____ _ ........ 0.1 ..........fiolQbk Salt*--.......................... ................. RonaeL___ *.......................... ... RoUDone (commercial),----.. BcWntuin compounds (ce&e).... .......... 0.001 1a01 * Belemtua hexafluoride,.--.--... 0.0* 0.4 BUvr, metal and soluble ee*o- * pounds............................. . ......................... ' 0.01 Sodium fluOTCeOfttaU (1<W)-- 8kin,_..................................... 0.0# aiSodium hydroxide--............... ................. BUblae......................................... a3 Stoddard aolvtct................. . Strychnine.......... . Suitor dioxide......'....... 1..:... .....0.0.........1,060O Jl <u .......... ,Suitor hexafluoride............. 1,000 . Sulfuric add.--.___.......... Sulfur moaoobloride............ I Sulfur peetafluoride....... 0. OSS 0,000 1 o 0.3# Suitoryl fluoride............. Syetox, lee Demeton *. %ijn.................... ft. *> ................ 10 Tinuhim...,......... ................... --i--.. TRDF--Skin............................. ............... . Tellurium............................. ...................... 'Tellurium hexafluoride.....-- 003 TRPF-teln................................................ C Terphcnyl*........................... 1 l,Ll^Tetmcbloro*3F3-dtflaore- ethane...................................... <00 l,l*2^Tetracliloro-l,3-dlfluon>- thmne..................................... 100 l,l,3,2`Totracliloroelba&e--Skin < Tetrnchlorocthylene, eee Per- dUoroutliylene............................... Tctiachloromethtne, tee Carboa tetrachloride--...................... . TetrechloronophtheJene--flkln.__________ Tetraethyl lead (ae Pb)-*~fikIo__ Ttuahydrofuran.--.............. 300 TeStrkalmiue.t.h.y..l.le..a.d..(.a.e..P.b->--...... *......... Tetrametbyl gueduooltril*-- Skin........................................... .< Tetrvnitromcthane.'___ _____ _ 1 < 0a.3i 0.3 0.04 4,170 4,17304 3 0.074 100 SOT 0 Taolt G*l--`Continued _ Sybtteuce p,|].ui.' l * Tetj-yl (2.4.6-trUiltzophcnyVmethyinltnunlne)--8kln,,._-- TbOHunt belubk eon* pogndr)--8klo ae TL-.......... Thlram.................... *........... Tin (Itrorfaole cmpds, except oxide*...................... . Tin (organic crouds)................... C Tohiene-2.4<dlleoeyaaate........ o-Toluldine--Skin............... . Toxaphene, me Chlorinated camphene.................. . . Tributyl phccpbaU................... LLl-Triehtoroethane, m Methyl ehwroform............ . LLS'Trkfaloroethaue^Bkln..... Tltantumdioxld*..........____ _ TrtctakvonwUii' 3, n* ChUra- 40 < 10 LI 0.1 1 0.1 ,n0.14 4ft 1ft TVichtoronaphthalene--Skin--... lAl-Tricbk>ropropaiie...... <0 l,1.3*Trichloro 1^,3-trtBuoru- thane........................ ............ 1.0W. Triethylamtne--.................... 3ft Trifluoromonobromomethene... L000 2,4.6-TrtnUropbenOi, see Picric add...................;........................................ . L4,0-Trinltrophenylroetbjl- t <00 7,000 100 M0Q . fUtrnmlna, m Tetryl......................... . Trinitrotoluene--tela...................... Trioctliocresyl phoepbate.............................. Trtphenyl phosphate.. ............... ............ Turpentine,.._____________________109 .<0010L1I Uranium (soluble bompounds)......... Uranium (Insoluble compounds)............ 0.00 . 030 C Vanadium: ViOi dust................................. VfOi fume.......................................... H Vinyl benzene, tee styrene..--.................... . Vlaylcyanide, tee Acrylonitrile. Vlny) toluene...............-- 109 * Warfarin,.................................. Xylene (xylol)--........100 Xylldlna--Skin........................... I Yttrium.......... ................... -------------- OI OSS 31I Zinc chloride fume............... .................... Zinc oxide fame.*............. Zirconium compounds (as 2r)--............. . - *3 , 1070 Addition; Parts of Tapor or per million parts of contami nated air by relume at 35* C. and 700 mm. He pressure. * Approximate milligrams of particulate per cubic mater of air. (No footnote c" Is used to amid oootoxtou with celling relae notations.) 0.024 ad atmospberio concentration of not more than p.p,m,, or personal protection may be nectary to avoid fteadaeba. Aj sampled by method that does not collect vapor. / For control of ceneral room air, bloiofle mealtaring Is eeserulal for personnel cootroL Mate Hal Benzene (Z37.4-1969) Beryllium and beryllium compounds (Z37.29-1970). Cadmium fume (Z37.5--1970) Cadmium dust {Z37.5-1970) Carbon disulfide {237.3--19^8} Carbon tetrachloride (237.17--1967) Ethylene dibromide (Z37.31--1970) Ethylenediehloride {237.21--1969} Formaldehyde (237.16--1967) Hydrogen fluoride (Z37.28-1969) Fluoride aa dust (Z37.28-1969) Lead and Us inorganic compounds (237.11-1909) TABLE Q-2 8-hour time 'weighted average Acceptable ceiling concentration 10 p.p.m. 2jug./Ha . 0.1 mg./M 0.2 mgyid 20 p.p.m. 10 p.p.m. 20 p.p.m. 50 p.p.m. 3 p.p.m. do 2.5 mg./M 0. mgyM* 25 p.p.m. 5 #ig./M8 3 mg./M 0.6 mg./M 30 p.p.m. 25 p.p.m. 30 p.p.m. 100 p.p.m. 5 p.p.m. $1910.93 Acceptable maximum peak above the acceptable ceiling concentration tor an 8-hour shift. Concentration Maximum duration 50 p.p.m. 25 fig-/M8 10 minutes. 30 minutes. 100 p.p.m. 200 p.p.m. 50 p.p.m. 200 p.p.m. 10 p.p.m. Do. 5 minutes in any 4 hours. 5 minutes. 6 minutes iu any 3 hours. 30 minutes. gp1 Table continued on next page 1%, m *Wi |S F.SS-S 90600 0N39 Material Mothjl chloride (237.18-1969) Methylene chloride (237.3-1969) Organo (alkyl) mercury (237.30^1969) Styrene (237.15-1969) Trichloroethylene (237.19-1907) Tetrachloroothylene (237.22--1907) Toluene (Z37.12-1-9G7) Hydrogen sulfide (237.2-19GG) TABLE G-2 (Continued) 8-hour time weighted average Acceptable ceiling concentration lOOp.pjn. 500 p.p.m. 0.01 mg./M8 100 p.p.m. do do 200 p.pjn. 200 p.p.m. 1,000 p.p.m. 0.04 mg./M* 200 p.p.m. do do 300 p.p.m. 20 p.p.m. Mercury (237.8-1971) Chronic acid and chromates (Z37.7--1971) 1 mg/lOM* do* Acceptable maximum peak above the acceptable ceiling concentration for an Shour shift Concentration Maximum duration 300 p.p.m. 2,000 p.p.m. 5 minutes in any 3 hours, 5 minutes in any 2 hours. 600 p.p.m. 300 p.p.m. do 500 p.p.m. 50 p.p.m. 5 minutes in any 3 hours. 5 minutes in any 2 hours. 5 minutes in any 3 hours. 10 minutes. 10 minutes once only if no other measurable exposure occurs. &O o r+- 1-t po c<nr1 O r-+- fttdo) D<HDQ MS& ttoo O bo t--' to SP Oe-r cl ^ cd Pi s: r- H ^ mmmmm t Federal Register, VoL 39, No. 125--Thursday, June 27, 1974 29 C.F.R. 1910,93a Asbestos. (g) Caution signs and labels. Posting. (1) Caution signs, (i) (2) Caution labels--(i) Labeling. Caution labels shall be affixed to all raw materials, mixtures, scrap, waste, debris, and other products containing asbestos fibers, or to their containers, except that no label is required where asbestos fibers have been modified by a bonding agent, coating, binder, or other material so that during any reason ably foreseeable use, handling, storage, disposal, process- or transportation, no airborne concentrations of asos fibers in excess of the exposure limits prescribed in Lgraph (b) of this section will be released. (ii) Label specifications. The caution labels required by subdivision (i) of this subparagraph shall be printed in letters of sufficient size and contrast as to be readily visible and legible. The label shall state: Caution Contains Asbestos Fibers Avoid Creating Dust Breathing Asbestos Dust May Cause Serious Bodily Harm 29 C.F.K. 1910.93c 4-Nitrobiphenyl. (a) Scope and application. (1) This section applies to any area in which 4^Nitrobiphenyl, Chemical Abstracts Service Registry Number 92933 is manufactured, processed, repackaged, released, handled, or stored, but shall not apply to trans-shipment in sealed containers, except for the labeling requirements under paragraphs (e)(2), (3), and (4) of this section. (2) This section shall not apply to solid or liquid mix-' tures containing less than 0.1 percent by weight or volume of 4-Nitrobiphenyl. 29 C.F.R. 1910.93d alpha-Naphthylamine. (a) Scope and application. (1) This section applies to any area in which alpha-Naphthylamine, Chemical Ab stracts Service Registry Number 134327 is manufactured, processed, repackaged, released, handled, or stored, but shall not apply to trans-shipment in sealed containers, except for the labeling requirements under paragraphs (e) (2), (3), and (4) of this section. (2) This section shall not apply to solid or liquid mix tures containing less than 1.0 percent by weight or volume of alpha-Naphthylamine. 29 C.F.R. 1910.93e 4,4'-Methylene bis(2-chloroaniline). (a) Scope and application. (1) This section applies to any area in which 4,4'-Methylene bis(2-chloroaniline), Chemical Abstracts Service Registry Number 101144 is manufactured, processed, repackaged, released, handled, or stored, but shall not apply to trans-shipment in sealed con tainers, except for the labeling requirements under para graphs (e)(2), (3), and (4) of this section. (2) This section shall not apply to solid or liquid mix tures containing less than 1.0 percent by weight or volume of 4,4'-Methylene bis(2-chloroaniline). 29 C.F.R. 1910.93f Methyl chloromethyl ether. (a) Scope and application. (1) This section applies to any area in which methyl chloromethyl ether, Chemical Abstracts Service Registry Number 107302 is manufac tured, processed, repackaged, released, handled, or stored, but shall not apply to trans-shipment in sealed containers, except for the labeling requirements under paragraphs (e) (2), (3), and (4) of this section. 19a (2) This section shall not apply to solid or liquid mix tures containing less than 0.1 percent by weight or volume of methyl chloromethyl ether. 29 C.F.R. 1910.93g 3,3'-Dichlorobenzidine (and its salts). (a) Scope and application. (1) This section applies to any area in which 3,3'-Dichlorobenzidine (or its salts), Chemical Abstracts Service Registry Number 91941 is man ufactured, processed, repackaged, released, handled, or stored, but shall not apply to trans-shipment in sealed con tainers except for the labeling requirements under para graphs (e)(2), (3), and (4) of this section, (2) This section shall not apply to solid or liquid mix tures containing less than 1 percent by weight or volume of 3,3'-Dichlorobenzidine (or its salts). 29 C.F.R. 1910.93h bis-Chloromethyl ether. (a) Scope and application. (1) This section applies to any area in which bis-chloromethyl ether, Chemical Ab stracts Service Registry Number 542881 is manufactured, processed, repackaged, released, handled, or stored, but shall not apply to trans-shipment in sealed containers, except for the labeling requirements under paragraphs (e) (2), (3), and (4) of this section. (2) This section shall not apply to solid or liquid mix tures containing less than 0.1 percent by weight or volume of bis-chloromethyl ether. 29 C.F.R. 1910.93i beta-Naphthylamine. (a) Scope and application. (1) This section applies to any area in which beta-Naphthylamine, Chemical Abstracts Service Registry Number 91598 is manufactured, processed, repackaged, released, handled, or stored, but shall not apply to trans-shipment in sealed containers, except for the label ing requirements under paragraphs (e)(2), (3), and (4) of this section. 20a (2) This section shall not apply to solid or liquid mix tures containing less than 0.1 percent by weight or volume of beta-Naphthylamine. (3) This section will not apply to operations involving the destructive distillation of carbonaceous materials, such as occurs in coke ovens. 29 C.F.R. 1910.93i Benzidine. (a) Scope and application. (1) This section applies to any area in which Benzidine, Chemical Abstracts Service Registry Number 92875 is manufactured, processed re packaged, released, handled, or stored, but shall not apply to trans-shipment in sealed containers, except for the label ing requirements under paragraphs (e)(2), (3), and (4) of this section. (2) This section shall not apply to solid or liquid mix tures containing less than 0.1 percent by weight or volume in Benzidine. 29 C.F.E. 1910.93k 4-Aminodiphenyl. (a) Scope and application. (1) This section applies to any area in which 4-Aminodiphenyl, Chemical Abstracts Service Registry Number 92671 is manufactured, processed, repackaged, released, handled, or stored, but shall not apply to trans-shipment in sealed containers, except for the label ing requirements under paragraphs (e)(2), (3), and (4) of this section. (2) This section shall not apply to solid or liquid mix tures containing less than 0.1 percent by weight or volume of 4-Aminodiphenyl. 29 C.F.E. 1910.931 Ethyleneimine. (a) Scope and application. (1) This section applies to any area in which Ethyleneimine, Chemical Abstracts Serv ice Registry Number 151564 is manufactured, processed, repackaged, released, handled, or stored, but shall not apply 21a to trans-shipment in sealed containers, except for the label ing requirements under paragraphs (e)(2), (3), and (4) of this section. (2) This section shall not apply to solid or liquid mix tures containing less than 1.0 percent by weight or volume of Ethyleneimine. 29 C.F.R. 1910.93m beta-Propiolactone. (a) Scope and application, (1) This section applies to any area in which beta-Propiolactone, Chemical Abstracts Service Registry Number 57578 is manufactured, processed, repackaged, released, handled, or stored, but shall not apply to trans-shipment in sealed containers, except for the label ing requirements under paragraphs (e)(2), (3) and (4) of this section. (2) This section shall not apply to solid or liquid mix tures containing less than 1.0 percent by weight or volume of beta-Propiolactone. 29 C.F.R. 1910.93n 2-Acetylaminofluorene. (a) Scope and application. (1) This section applies to any area in which the Acetylaminofluorene, Chemical Ab stracts Service Registry Number 53963 is manufactured, processed, repackaged, released, handled, or stored, but shall not apply to trans-shipment in sealed containers, except for the labeling requirements under paragraphs (e) (2), (3), and (4) of this section. (2) This section shall not apply to solid or liquid mix tures containing more than 1.0 percent by weight or volume of 2-Acetylaminofluorene. 29 C.F.R. 1910.93o 4-Dimethylaminoazobenzene. (a) Scope and application, (1) This section applies to any area in which 4-Dimethylaminoazobenzene, Chemical Abstracts Service Registry Number 60117 is manufactured, processed, repackaged, released, handled, or stored, but T it l e 4 9 -- T r a n s p o r t a t io n 49 C.F.R. 172.5 L is t of liazardous materials. (a) F o r explanation of signs and abbreviations see 172.4. 22a shall not apply to trans-shipment in sealed containers, except for the labeling requirements under paragraphs (e) (2), (3), and (4) of this section. (2) This section shall not apply to solid or liquid mix tures containing less than 1.0 percent by weight or volume of 4-Dimethylaminoazobenzene, 29 C.F.R. 1910.93p N-Nitrosodirnethylamine. (a) Scope and application. (1) This section applies to any area in which N-Nitrosodirnethylamine, Chemical Ab stracts Service Registry Number 62759 is manufactured, processed, repackaged, released, handled, or stored, but shall not apply to trans-shipment in sealed containers except for the labeling requirements under paragraphs (e) (2) (3), and (4) of this section. (2) This section shall not apply to solid or liquid mix tures containing less than 1.0% by weight or volume of NNitro sodimethylamine. 29 C.F.R. 1910.18 Decision. (b) Any rule or standard adopted under paragraph (a) of this section shall incorporate a concise general statement of its basis and purpose. The statement is not required to include specific and detailed findings and conclusions of the kind customarily associated with formal proceedings. How ever, the statement will show the significant issues which have been faced, and will articulate the rationale for their solution. T: Jrr:1 "T^ys^- , J- *-r.- *.*>iA-*** A J; GENC 009712 -r, 1 a g i ... n __ i __i_ * f ----rr-n^ **L - . - - - i -- - v1 ' .- W" - 49Title --Transportatioi 49 C.F.R. 172,5 List of hazardous materials. (a) For explanation of Bigns and abbreviations see 172.4. Article Classed as Vinyl chloride Vinylidene chloride, inhibited Vinyl fluoride inhibited Vinyl methyl ether, inhibited Vinyl trichlorosilane War heads. See Explosive projectiles. Waste paper, wet Waste textile, wet Waste wool, wet Water treatment compound, liquid. Weed killing compounds, liquid. See `Compounds, tree or weed killing, liquid. Wet hair. See Hair, wet Wet nitrocellulose, colloided, gran ular or flake--20 percent alcohol or solvent; or block--25 percent alcohol. Wet nitrocellulose, colloided, gran ular or flake-20 percent water. Wet nitrocellulose--30 percent alcohol or solvent. Wet nitrocellulose--20 percent water Wet nitrocellulose flakes--20 percent alcohol or solvent. Wet nitroguanidine--20 percent water. Wet nitrostarch-20 percent water Wet nitrostarch-30 percent alcohol or solvent Wet paper stock. See Paper stock, wet. Wet rags. See Rags, wet. Wet textile waBte. See Waste textile, wet. P.C.G. F.L. F.C.G. F.C.G. F.ti. F.S. F.S. F.S. Cor F.L. F.S. F.L. F.S. F.L. F.S. F.S. F.L. Exemptions and packing (see sec.) 173.306, 173.304, 173.314, 173.315 173.118, 173.119 173.306,173.304, 173.314, 173.315. 173.306, 173.304, 173.314 No exemption, 173.135 No exemption, 173.186 No exemption, 173.211 No exemption, 173.213 173.244,173.249 173.118,173.127 173.153,173.184 173.118,173.127 173.153, 173.184 173.118,173.127 173.153,173.184 173.153, 173.184 173.118, 173.127 Label required if not exempt F.G. F.L. F.G. F.G. F.L. F.S. F.S. F.S. Corrosive Maximum quantity in 1 outside container by rail express 300 pounds. 10 gallons. 300 pounds. 20 pounds. 10 gallons. Not accepted. Not accepted. Not accepted. 10 gallons. F.L. F.S. F.L. F.S. F.L. F.S. F.S. F.L. 25 pounds. 100 pounds. 25 pounds. 100 pounds. 25 pounds. 100 pounds. 100 pounds. 25 pounds. Table continued on next page [tlr.LLl. S'ft.'i tor- v'r,` 4-r: w. i>.. .; -.I ip* ii; k'v ii Title 49--Transportation (Continued) Article Classed as Wet waste paper. See Wasto paper, wet. Wet waste wool. See Waste wool, wet. Wood alcohol {methanol, methyl alcohol). 'Wood filler. See 'Paint, enamel, lacquer, stain, shellac, varnish, etc. Wood polish. See 'Polishes, metal, stove, furniture and wood, liquid. Woodstain,liquid. See 'Paint, enamel, lacquer, stain, shellac, varnish, etc. Wool waste, wet. See Waste wool, wet X-ray film (nitrocellulose hose) X-ray film (slow-burning) X-ray film scrap (nitrocellulose hose), samples of. X-ray film scrap {'nitrocellulose base), other than eamples. X-ray film scrap (slots-burning) X-ray film, unexposcd (nitrocellulose hose). Xylol (Xylene) Xylyl bromido Zinc ammonium nitrite Zinc arsenate Zinc arsenate, solid Zinc chlorate Zinc cyanide ' Zina ethyl,: See Prroforto liquids, n-o.s.;, itZiMnitrate, Nitratea, nloj iZlue pnuuituuiUlMb|iJikl.khh: F.L. F.8. See 5 173.181 00(1). F.S. F.S. See } 173.181 W(2). F.S. F.L. Irr Oxy. M. Pots. D Pois. B Oxy. M See J 173.370. r, Oxy,Ml Exemptions and packing (see Bee.) 173.118,173.125 No exemption, 173.177 No exemption, 173.198 Noexemption, 173.195 173.180 173.118,173.119 No exemption, 173.382 No exemption, 173.238 173.384, 173.365 173.364,173.365 173.163,173.163 f.xT 173.153,173.164 n 173.163,173.164 Label required if not exempt F.L. Maximum quantity in 1 outside container by rail express 10 gallons. F.S. 200 pounds. 25 pounds. Not accepted. F.S. F.L. Irritant Oxy. Pois 250 pounds. 10 gallons. 75 pounds. 100 pounds. 200 pounds. 200 pounds. 100 pounds. 100 pounds. ,, j; \ 100 pounds. GENC 009714 O ttox TC0Of tm ;+- o tr1 trJ S', Prt> w7*. t-;t D p*-i w2^ ygP?, P jS tn p&. pP o2. Title 49--Texuspoktatioit 49 C.F.R. 173.402 Labeling hazardous materials. (a) Except as otherwise provided in this part, no person may offer for transportation a package containing a haz ardous material unless that package is conspicuously labeled in accordance with the following: (3) For a flammable compressed gas, a "Flammable gas" label as described in 173.407. 49 C.F.R. 173.404 Labels. (a) Shippers must furnish and attach the labels pre scribed for their packages. Labels should be applied to that part of the package bearing consignee's name and address. (b) Labels must not be applied to a package containing only material which is not subject to Parts 170-189 of this subchapter or which is exempted therefrom. However, this paragraph does not prohibit the use of labels required for purposes of import or export shipments or required by 14 CFR 103.13 of the Federal Aviation Regulations on pack ages destined for transportation by air. (c) Shippers must not use labels which by their size, shape, and color, may readily be confused with the stand ard caution labels prescribed in this part. (d) Except as otherwise provided in this part, each label must be diamond shape with each side at least 4 inches long and have a solid line border at least 3.5 inches long on each side. The specifications for colors in Appendix A to this part should be followed for the colors prescribed in 173.405 through 173.422. (e) Form identification information (including name of supplier) may be printed on a label, in type not larger than 10 point, if it is placed outside of the solid line border of the label. 26a (f) For import shipments only, labels affixed to packages in another country having the same size, symbols, and color as prescribed in these regulations are authorized in place of the labels prescribed herein. They may contain inscriptions required by the country of origin. (g) A label may be overstamped or overprinted with the appropriate hazard class numeral as listed in 172,4 of this subchapter. The number should be black, at least 0.25 inch in height, and must be located in the bottom comer of the label. Note: The display of the class number on labels is re quired by some foreign governments. (h) Labels required by the regulations immediately prior to January 1, 1974, may be used until January 1, 1975. This provision does not apply to the required use of labels for explosives. [29 F.E. 18767, Dec. 29, 1964, as amended by Arndt. 173-70, 38 FE 5310, Feb. 27, 1973] 49 C.F.E. 173.407 Flammable gas label. (a) Each "Flammable gas" label except for size and color must be shown: (1) In addition to the requirements of 173,404, each label must be red, with the inscription, border, and symbol black. [Arndt. 173-70, 38 FR 5311, Feb. 27, 1973] Note: The amendments appearing at 37 FR 5947, March 23, 1972 were designated effective December 31, 1972, At. 38 FR 12807, May 15, 1973, the effective date was post poned to December 31,1973. APPENDIX B UNITED STATES DEPARTMENT OF LABOB OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION Title 29, Code of Federal Regulations, 1910.93q, Vinyl chloride. In the Matter of: Permanent Occupational Safety and Health Standaed foe Exposure to Vinyl Chloride PETITION FOR STAY OF EFFECTIVE DATE OF STANDARD The Society of the Plastics Industry, Inc. (SPI),1 by its attorneys, hereby petitions the Assistant Secretary of Labor for Occupational Safety and Health to stay the recently promulgated standard for occupational exposure to vinyl chloride, 29 C.F.R. 19l0.93q (39 Fed. Reg. 35890, October 4, 1974). The primary ground for requesting this relief is, as set out in more detail in the attached Affidavit of Jerome H. Heckman, Esq., that the respiratory protection require ments of the standard are beyond the compliance capabili ties of the industry. Firstly, the permitted equipment is not available in sufficient supply now nor will it be on January 1, 1975 or in the immediate future. Secondly, not only is much of the respiratory protective equipment speci- l The Society of the Plasties Industry, Inc, is a corporation organised un der the Not-for-Profit Corporation Law of the State of New York. It is composed of approximately 1,400 member companies and individuals who supply raw materials; process or manufacture plastics or plastics products; engineer or construct molds or similar accessory equipment for the plastics industry; and engage in the manufacture of machinery used to make plastics products for material of all types. The Society is the major national trade association of the plastics industry; its membership is responsible for an estimated 75% of the total dollar volume of sales of plastics in this country. It is through the SPI Vinyl Chloride Monomer and Polyvinyl Chloride Resin Producers Committee, an operating unit of SPI, that the plastics industry has coordinated its participation in the rulemaking proceedings concerning occupational exposure to vinyl chloride. As such, therefore, the SPI has a direct interest in this matter in its capacity as designated representative of the affected employers. tied for use under the Standard not as yet approved for the specified uses, but, on the basis of the attached memo randa from the Acting Director of the NIOSH Office of Research and Standards Development to the Acting Direc tor of NIOSH dated October 18, 1974 and from the Acting Director of NIOSH to the Director of the OSHA Office of Standards, it is anticipated that such yet to be approved respiratory protective equipment will not be approved by January 1,1975. Thirdly, a sufficient supply of such equip ment cannot, even with all appropriate approvals, be made available in sufficient time for the industry to comply with the standard by its present effective date. Failure to grant the requested relief would force large segments of the vinyl chloride monomer and polyvinyl chloride resin industry to cease manufacturing operations after December 31, 1974. Wherefore, It Is Respectfully Requested that the Sec retary expeditiously grant the relief requested herein, to wit: stay the effective date of that portion of the standard due to become effective January 1, 1975; and continue the aforementioned stay in effect until such time as sufficient quantities of approved respiratory protective equipment are available to the industry, or until a court determines that compliance with the relevant portions of the standard is not required. Respectfully submitted, Of Counsel: H./s/ Jebome Heckman Jerome H. Heckman General Counsel The Society of the Plastics Industry, Inc. Keller and Heckman 1150 17th Street, N.W. Suite 1000 Washington, D. C. 20036 Telephone: (202) 296-2700 Date: November 5, 1974 AFFIDAVIT City of Washington 1 District of Columbia j BS` I, Jerome H. Heckman, of Washington, D.C., attorney for The Society of the Plastics Industry, Inc. (SPI), being first duly sworn, do depose and say as follows: 1. I am an attorney at law, a partner in the Washington, D.C. law firm of Keller and Heckman and am General Counsel to The Society of the Plastics Industry, Inc. In that capacity, I have and continue to represent the Society and its members in matters with regard to the Department of Labor's Occupational Safety and .Health Administra tion standard setting proceedings in the matter of occupa tional exposure to vinyl chloride. 2. I have reviewed the recently promulgated occupa tional exposure standard for vinyl chloride, 29 C.F.R. 1910.93q, published in the Federal Register on Friday, October 4,1974 at page 35890 et seq. Based on knowledge, information, and belief acquired by receiving information from companies in the industry, I further state that, with regard to the aforementioned standard for occupational exposure to vinyl chloride, it will be impossible for the affected industry to comply with the Standard, especially the section entitled "(g) Respiratory protection" thereof (29 C.F.R. 1910.93q(g)) and that, therefore, unless appro priate relief is granted, a substantial number of vinyl chloride and polyvinyl chloride manufacturers in the United States will have to cease manufacturing and production operations after December 31, 1974. Likewise, many proc essors, fabricators and others covered by the Standard and requiring respiratory protective equipment will have to cease operations after December 31, 1974. 3. The specific nature of the requirements in the Stand ard, that is, the fact that every employee in every segment of the industry exposed to concentrations of vinyl chloride in excess of the permissible levels of 1 part per million (ppm) averaged over any eight hour period and 5 ppm averaged over any period not exceeding 15 minutes must be su] vice e quant ment indus 4. ' viduc Stain tory to co figur wlict be ol eonti tive 5. lmoA Stai regf. necc by - 6. we stan men den equ 7. ver, as 1 i conf con; like and of 1 31a be supplied with an appropriate respiratory protective de vice as set out in the Standard, suggested that insufficient quantities of the prescribed respiratory protective equip ment would be available in sufficient time to enable the industry to comply with the requirements of the Standard. 4. Following up on this, by telephone, we contacted indi vidual VCM and PVC industry members covered by the Standard to determine the types and quantities of respira tory protective devices they would have to obtain in order to comply with the Standard's requirements. The specific figures requested and obtained covered equipment required, whether on order or not, which equipment would have to be obtained and installed or otherwise on hand in order to continue manufacturing operations on and after the effec tive date of the Standard, January 1, 1975. 5. Similarly, by telephone, we inquired directly of all known suppliers of the respiratory equipment listed in this Standard to ascertain whether these suppliers could, dis regarding outstanding and unfilled orders, supply the necessary respiratory protective equpiment to the industry by January 1, 1975. 6. Comparing gross available supply with gross demand, we have determined that, even under the best of circum stances and assuming the timely approval of eligible equip ment specifically permitted under the Standard, the gross demand is considerably in excess of the supply for the equipment required. 7. The specifics of the supply and demand situations, as very conservatively projected from the data gathered, are as follows:1 (a) For atmospheric concentrations of vinyl chloride that are unknown or above 3,600 ppm, the demand of l The information in this survey was gathered by Connsel on a company confidential reporting basis so as to avoid any possibility of adverse antitrust considerations. Therefore, the detailed background data, affidavits and the like are not being made available herewith, it being assumed that the data and information reported herein can be easily verified by the Department of Labor and the Occupational Safety and Health Administration. 32a the vinyl chloride monomer and polyvinyl chloride resin manufacturers is for 429 of the prescribed units with 1,072 air bottles. Current available supply is 3,325 units and 6,000 refills. The lag time for supply of additional units is in the range of 30 to 60 months. (b) For vinyl chloride concentrations not in excess of 3,600 ppm, there is a total demand of 3,186 complete units. The suppliers indicate that neither of the de vices specified is available. As to the combination type C supplied air respiratory, pressure demand type, only a prototype model exists as of this time but it has not been approved by NIOSH and, even if it were, no estimates could be obtained as to when this device would be commercially available. As to the type C, supplied air respirator continuous flow type, the sup pliers of this equipment have informed us that NIOSH has refused to authorize the currently available equip ment for use by this industry because the continuous air flow rate is insufficient. (c) For vinyl chloride concentrations not in excess of 100 ppm, the demand is for 614 devices of any per mitted type. The suppliers report that this demand cannot be met. The demand type supplied air respira tor supply picture is the same as that reported in subparagraph (b) above for the pressure demand type supplied air respirators. The same is true of the open circuit self-contained breathing apparatus discussed in subparagraph (a) above except that these devices per mitted for less than 100 ppm are demand type rather than pressure demand type. One supplier informed us that an unknown quantity of demand type self-con-"* tained devices would become available at some unspe cified time during the first half of 1975. As to the demand type supplied air respirators, commercially available devices of this nature are not currently NIOSH approved. However, if approval could be ex peditiously obtained, approximately 500 units could be supplied by the first of the year with a lead time of eight months from the time of NIOSH approval and the filing of purchase orders for additional units. (d) For vinyl chloride concentrations not in excess of 25 ppm, demand for either unit permitted is 5,478 33a units with 108,397 refills. The suppliers report that the powered air purifying respirator with hood does not exist. Canister gas masks, not yet approved by NIOSH, are available. Approximately 3,000 units and an unknown number of replacement canisters are cur rently available with a potential canister replacement production of 30,000 units per month beginning after January 1, 1975. (e) For vinyl chloride concentrations not in excess of 10 ppm, the demand for any permitted device is 2,940 units and 556,500 replacement cartridges as ap propriate. The supply for the demand type supplied air respirators permitted is the same as reported in subparagraph (c) above. Chemical cartridge type res pirators are available but have yet to be NIOSH ap proved. With NIOSH approval, suppliers indicate that 3,000 units and an unknown quantity of replace ment cartridges are currently available and that poten tial replacement cartridge manufacture rates after January 1, 1975 are in the range of 200,000 units per month. From the foregoing it is obvious that the demand for res piratory protective devices exceeds both current available supply and the supply were all NIOSH approvals granted. The industry requires approximately 12,650 respiratory protective devices on hand and operable by January 1, 1975 since a major portion of the respiratory protective devices on hand in industry are not of the type permitted in the new Standard and the Standard's very low permis sible exposure limits combined with the very broad defini tion of regulated area has caused an expansion in the number of personnel who must be supplied with respira tory protective equipment. Other regulations and guide lines, both federal and state, will further increase the already high demand. The available supply of respirators of all types is low because NIOSH approvals for certain types of equipment 34a are lacking or have been withdrawn. Additionally, since the specific requirements of the Standard were not known until October 4, 1974, suppliers have not yet had an oppor tunity to plan and begin production of the appropriate equipment. In any case, total available supply at this time is 3,325 units. With NIOSH approval of all permitted systems listed in the Standard available supply would still only be 9,825 units. In short, the current available supply is only 26% of current demand with optimum supply (expeditious NIOSH approvals) being only 78% of current -demand. Without appropriate NIOSH approvals the industry is a mi-m-mum of 22% and a maximum of 74% short of the respiratory protective devices mandated by the Standard. These figures have been developed solely from the de mand existing in the vinyl chloride monomer and polyvinyl chloride resin segments of the industry. The potential of additional demand being created by processors, fabricators and other elements of the industry could not be calculated and factored into this survey. Nonetheless, it is patently obvious that any increase in demand from other segments of the industry will enlarge the gap between supply and demand. In light of the foregoing facts we have concluded that, because the supply for respiratory protective devices is so short, there is no likelihood that, even given NIOSH ap provals and the most equitable apportionment of the avail able supply, all the closely interrelated and interdependent segments of this industry could legally continue manufac turing operations after December 31, 1974. An interrup tion in the manufacturing abilities of raw materials sup pliers, or the semi-finished products consumers and sup pliers would have such a significant impact on the other elements of the industry that no portion of the industry, even if it were itself able to meet all requirements of the 35a Standard, could continue in operation because either the raw materials supply or the markets would cease to function. /s/ Jerome H. Heckman Jerome H. Heckman General Counsel The Society of the Plastics Industry, Inc. Kellek and Heckman 1150 17th Street, N.W. Suite 1000 "Washington, D. C. 20036 Telephone: (202) 296-2700 Subscribed and sworn to before me this 5th day of November, 1974. Joseph E. Eeller Notary Public Seal: My Commission Expires Feb. 14,1975 Received Oct. 23, 1974 MEMORANDUM DEPARTMENT OE HEALTH, EDUCATION, AND WELFARE PUBLIC HEALTH SERVICE CENTER FOR DISEASE CONTROL NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH Date: October 21, 1974 To: Director, Office of Standards Occupational Safety and Health Administration, DOL :From Acting Director, NIOSH :Subject Vinyl Chloride Respirator Usage NIOSH has reviewed the Occupational Safety and Health Standard for Exposure to Vinyl Chloride which appeared in the October 4, 1974, Federal Register (39 FR 35890). GENC 009725 _ .............-~-~ 'vUcrl'T' *' ', ^`^Vr 36a Particularly noted were those sections dealing with reepirator usage, which allowed the use of air-purifying res pirators under certain circumstances. Unfortunately, as indicated in the enclosed memorandum, no respirators of a cannister or cartridge type that will protect the worker in non-emergency operations is currently available or likely to be this year. Therefore, the NIOSH stand for protection in non-emer gency situations must remain as stated in the Recom mended Standard transmitted to OSHA on March 11,1974: "Until exposures to vinyl chloride are reduced below detectable levels, employees entering any regulated area shall be provided with and required to wear and use a full-face, supplied air respirator, of the con tinuous flow or pressure demand type in accordance with 1910.134. Enclosure /s/ Edwabd J. Baier Edward J. Baier MEMORANDUM UEPABTMENT OF HEALTH, EDUCATION, AND WELFARE PUBLIC HEALTH SERVICE CENTER FOE DISEASE CONTROL NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH Date : October 18,1974 To: Edward J. Baier Acting Director, NIOSH From: Acting Director, Office of Reseach and Standards Development Subject: Respirator Use Recommendations for Vinyl 'Chloride The current NIOSH respiratory protection recommenda tions, as expressed in the Recommended Standard for 0 GENC 009726 37a Occupational Exposure to Vinyl Chloride, calls for use of positive-pressure supplied air respirators where there is detectable exposure to vinyl chloride. In preparing for the above recommendation, the NIOSH Engineering Branch in Cincinnati tested organic vapor can isters and cartridges for effectiveness against vinyl chlo ride . An Evaluation of Organic Vapor Respirator Cart ridges and Canisters Against Vinyl Chloride, by David L. Smith and William S. Giesler (NIOSH Publication No. 75111) describes these tests and supports the above recom mendations. On September 19, 1974, Mr. Grover Wrenn of CSHA, met with Messrs. Lynch, Gudeman, and Bryant of NIOSH, to discuss respiratory protection against vinyl chloride. Mr. Wrenn indicated then that OSHA was determined to per mit use of powered air-purifying respirators and gas masks for vinyl chloride respiratory protection for routine and non-routine use, respectively. OSHA, subsequently, revised these proposed use require ments and the Occupational Safety and Health Standard for Exposure to Vinyl Chloride which appeared in the October 4,1974, Federal Register (39 PR 35890), contained the following general requirements: 1. Respirator use is voluntary. 2. MESA/NIOSH--approved respirators shall be used. 3. A respirator program shall be established and main tained. 4. The following respirators may be used. Over 3,600 ppm Not over 3,600 ppm Not over 100 ppm Not over 25 ppm positive pressure SCBA supplied air respirators (positive pressure) supplied air respirators powered air purifying respi rator gas mask (4 hours service life up to 25 ppm) 38a Not over 10 ppm chemical cartridge respira tor (1 hour service life up to 10 ppm) The above respirator use requirements in item 4 are based on expected performance criteria that would reduce the vinyl chloride concentration in the wearer's breathing to acceptable levels. No canister or cartridge masks are currently available which meet NIOSH requirements nor are any expected to be approved during this year. Consequently, the original recommendation by NIOSH is to be reiterated, i.e. employees entering any regulated area shall be provided with and required to-wear and use a fullface, supplied air respirator, of the continuous flow or pressure, demand type in accordance with 1910.134. In response to this publication, the NIOSH Engineering Branch has prepared test requirements for, and TCL is preparing to approve, canisters and cartridges meeting the following general performance requirements: Device Test Concentration, ppm Vinyl Chloride Service life, hours Canister Air-purifying cartridge Powered airpurifying cartridge 25 10 25 6 2 6 Each type of device shall be equipped with an end-of-serv- ice life indicator. The approved devices would hear labels requiring careful fitting to the respirator wearer and strict quality control of sorbent materials which would be re quired. /s/ E.Hebbebt Chbistexsex Herbert E. Christensen, D.Sc. Attachment