Document o94rRv8e7zZaV3JaygZJjk8YX

JOSEPH E. KELLER JEROME H HECKMAN CHARLES M. MEEHAN william H BORGHESANI, JR ROBERT R. TIEHNAN WAYNE V BLACK DAVID L HILL Martin w behcovici PETER M NEMKOV JOSEPH E. HADLEY CAROLE C. HARRIS WILLIAM W, PUGH PETER THOMAS SMITH law offices Kelieh and Heckman 1130 17T5 STREET, N. W. SUITE IOOO Washington, d. c. 30036 December 17, 1974 W. A. K. DEC 2 3 1974 TELEPHONE SOfi $96-2700 cable abdbess "kelman" TO: All Members of: SPI Food, Drug and Cosmetic Packaging Materials Committee; General Polyvinyl Chloride Interest Mailing List; Ad Hoc Liquor Bottle Committee; Plastic Pipe Institute (Executive Board); SPI Executive Committee; SPI Public Affairs Committee; VC and PVC Producers Committee Ladies and Gentlemen: On Friday, December 13, 1974 the United States Court of Appeals for the Second Circuit heard Oral Argu ments on the Petitions for Review of the Occupational Safety and Health Administration's Standard for Exposure to Vinyl Chloride, all Briefs having been filed as of December 11. At the end of the Argument, the Court granted the Petitioners' Motions for a Stay until such time as it renders a decision on the merits of the case. Obviously, the Court's action on the Stay con stitutes something of a victory but it should in no way be taken as a true indicator vis-a-vis the ultimate resolution of the case. On the basis of what has hap pened to date, we are making no predictions in this regard and will continue to refuse to do so. In some respects, it would seem reasonable to assume that one major reason for the Court's granting the Stay was the fact that this is a complicated case and there had not been adequate time for the three judge panel, including Mr. Justice Clark, to study the Briefs and voluminous Record The Court's formal written order granting the Stay has just been filed with the Clerk so we will have to send you a copy in a future mailing. In the hope that ASI-PR 0002315 December 17, 1974 Page Two they may give you a little more of the flavor of the situation, as well as what we consider to be reasonably accurate and informative reports on the Oral Argument, we have reproduced and are enclosing herewith copies of a Wall Street Journal article and a Journal of Commerce article from the December 16 editions of these publica tions . In our last letter we enclosed a copy of that portion of the Brief for Respondents which detailed the OSHA plan to consider temporary variance orders if cbmplete applications therefore were received at OSHA by December 23, 1974. Shortly after the letter was sent, we received a letter from Secretary Stender formally denying our request for a Stay and repeating the "offer" of expedited action on variances in lieu thereof. In response to arguments raised in our Reply Brief designed to counter the Department of Labor's "offer," Government Counsel presented this letter-- which, incidentally, we consider wholly unresponsive to our November 5 Petition for a Stay filed with OSHA, and to the similar requests filed by other Petitioners sub sequently--to the Court during Oral Argument. Fortunately, the Court did grant our Motion for a Stay, however, so we now consider the Stender letter moot, as well as somewhat inscrutable. A copy of the letter from Secretary Stender is enclosed as a matter of interest. As a follow-up, we promised in our last letter to send you a copy of the Federal Register Notice an nouncing the Secretary's "offer" to consider temporary variances. As of this writing, that document has not yet appeared in the Federal Register. If it does appear, it, too, would seem moot now, in light of the Stay granted by the Court. On a related matter, you will recall that the Coast Guard is working on final regulations pertaining to shipments of vinyl chloride monomer on tankers or other vessels under Coast Guard jurisdiction. These regulations were expected to mandate the same limits that OSHA set. We notified the Coast Guard of the Stay ASI-PR 0002316 Deceinber 17, 1974 Page Three this week, and we believe that it will now hold up any final regulation, at least in the form originally antici pated, until the U.S. Court of Appeals has ruled upon OSHA's Standard. There is nothing definitively new to report on the FDA front except that some of you have informed us of letters that you have been sending to the agency. We cannot yet predict with certainty what effect they are having, but we now have reason to be hopeful that FDA may be shifting its ground again, this time in more reasonable directions. As we have been doing, we shall continue to attempt to keep you informed on all aspects of the vinyl chloride monomer problem. It is highly unlikely that there will be occasion for another letter from us before December 25, however, so please let us take this opportunity to wish you and yours the merriest of Christmases and the happiest of New Years. Cordially yours, Enclosures ASI-PR 0002317 U.S. DEPARTMENT OF LABOR Occupational Safety and Health Administration WASHINGTON, D.C. 20210 Office of the Assistant Secretary DEC 1 0 J374 Jerome H. Heckman, Esq. Keller and Heckman H50-17th Street, N.W. Suite 1000 Washington, D.C. 20036 Dear Mr. Heckman: This letter will respond to your November 5 petition to stay the Department's peimanent. .sfandaid regulating worker exposure to vinyl chloi ido `.vhi.'h becomes effect j Ve January 1, 1975. Your petition contends that the standard should be stayed because vinyl chloride monomer and polymer pro ducers cannot comply with its respirator requirements for the following reasons: (1) respirators permitted by the permanent standard are not available in sufficient quantities: { t) no air-purifying respirators have yet been approved by NIOSII; and (3) even if approved, a sufficient supply of airpurifying respirators will not be available by January 1. I initially note that the grounds asserted in your petition would justify only a stay of the standard's respirator pro vision rather than a stay of the entire standard, since those grounds address only an alleged difficulty of compli ance with the permanent standard's respirator requirements. Your petition is accordingly treated as a request that the permanent standard's respirator requirements be stayed. After carefully reviewing your petition and supporting affidavit 1 reaffirm my previous conclusion, 39 Fed. Reg. 35890, that the permanent standard's respirator require ments are proper. In the first place, neither SPI nor any other interested party had contended that the respir ators permitted by the emergency temporary standard or the first stage of the permanent standard for exposures above 50 ppm were unavailable. The permanent standard's January 1 requirements permit use of more respirators and should generally facilitate compliance. ASI-pr 0002318 2- - Second, an inadvertent error in the permanent standard has been corrected to permit continued utilization of the respirator most widely used under the emergency temporary standard. 39 Fed. Reg. 41848. This cor rection was apparently not contemplated by your petition. Third, numerous respirators have already been approved by NIOSH, are being commercially manufactured, and are being used by the thousands. Moreover, NIOSH has recently reaffirmed -- in a communication received after the filing of your petition -- its willingness to test air-purifying respirators on an expedited basis, and to approve them for use until December 31, 1975 without a service-life indicator. Attachment A. Finally,.the entire worker, population covered by your petition numbers.only ^SOQ^individyal^XJ.A. 3463-75), -- ,La group whose i.smalli.siz^jndAifcates^ag&iRsttany ug^peral;--'~w and semi-permanent suspension of theLpermanent standard's" respirator. requirements. For the above reasons your petition generally to stay the permanent standard's respirator requirements, as a2petition to stay, is denied. However, your papers and-those of other parties filed as stay applications before the. Second Circuit do suggest that because of the necessary speed with which regulation has proceeded some employers may experience difficulty in obtaining sufficient quantities of permitted respirators by January 1. The Act-expressly provides a route, via procedures looking towards- issuance of a temporary variance order, by which such 'employers may obtain relief prior to incurring any enforcement obligations if they inter alia show that they are unable to comply "because of unavailability * * * of materials or equipment." 29 U.S.C. 655(b)(6)(A); see 29 CFR 1905.1 et seq. (1974). These temporary variance pro cedures also contemplate the issuance of interim orders suspending such employers' obligations under the relevant parts of the general standard until the requested tem porary variance is granted or denied. See 29 CFR 1905.10 (c). This temporary variance procedure is especially appropriate where, as here, any unavailability of respirators is likely to be temporary as the permanent standard creates a market for the equipment required. ASI-PR 0002319 -3- Your stay petition and the substantially identical petitions of other rulemaking parties now pending before the Second Circuit are accordingly treated as incomplete applications far interim and temporary variance orders pursuant to 29 U.S.C. 655(b)(6)(A) and implementing regulations. Further information bringing `these appli cations into full compliance with 29 uTs.C. 655(b)(6)(B) (iii) through (v) and 29 CFR 1905.10 (1974) must be re ceived by this Department no later than December 23, 1974 to enable the formal statutory variance procedure ex peditiously to begin. Upon timely receipt of this in formation the Department will consider it on an expedited basis in conjunction with other current evidence and will grant or deny interim orders to applying employers in the shortest time consistent with reasoned decision. Until such interim orders are granted or denied no applying employer will be cited for failing to comply with the permanent standard's respirator requirements unless ex posure levels are above 50 ppm. It is expressly con templated that these interim orders will be decided with rapidity; that any applicant's failure to comply with 29 U.S.C. 655(b)(6)(B) and implementing regulations by December 23, 1974 will result in dismissal of his appli cation; and that the few weeks' delay occasioned by this procedure will not significantly affect worker protection under the permanent standard. Nothing in this response is intended to preclude any applying employer from showing, pursuant to the above statutory provisions and regulations, that a supply of permissible respirators adequate to insure full compliance with the permanent standard's respirator requirements will not be available to him by January 1, 1975. Nor is anything in this response to be construed as a represen tation that interim or temporary variance orders will be granted to any applying employer. Sincerely, 7*Cohn H. Stender L"" y*Assistant Secretary of Labor Enclosure cc: All parties ASI-PR 0002320 MEMORANDUM DEPARTMENT AND WELFARE center for disease control NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH ro : Mr. A1 Reis Occupational Safety and Health Administration, DOL DATE: November 26, 1974 FROM : Acting Director, NIOSH SUBJECT: NIOSH Testing and Certification of Respirators for Protection from Exposure to Vinyl Chloride This will confirm our telephone conversation this morning regarding the above subject. NIOSH has set up a special room at its Morgantown, West Virginia, facility to handle the gas so that NIOSH personnel will not be exposed. NIOSH personnel who will be involved in testing have undergone or will undergo physical examinations. This has been done in accordance with DHEW pro cedures for handling carcinogenic substances. The system is now in place and ready to function as soon as manufacturers submit their respirators to us. A draft protocol was prepared, and an information copy was delivered to you last Friday. The protocol will be reviewed by the Department of the Interior and DHEW and will be published in the Federal Register. The requirement for an end of service life indicator is not now required, however, the section of the protocol was drafted to read: "After June 30, 1975, each canister or cartridge submitted for approval and testing in accordance with Sections 11.202, 11.203, and 11.204 shall be equipped with a canister or cartridge end of service life indicator which shows a satisfactory indicator change or other obvious warning before 1 ppm vinyl chloride penetration occurs. The indicator shall show such change or afford such warning at 80 +10 percent of the total service life to 1 ppm leakage, as determined by continuing each test described in subparagraphs (b) of each of Sections 11.202, 11.203, and 11.204 of this subpart until a 1 ppm leakage of vinyl chloride occurs. After December 31, 1975, a cartridge or canister without a service life indicator shall not be considered approved for use by employees exposed to vinyl chloride." A$I~PR 0002321 Page 2 - Mr. A1 Reis Also, as you requested we have changed the draft to include testing of canisters for longer than 4-hours. Assunlng these canisters will not distort the face piece, which would immediately disqualify them, I want you to know that longer than 4-hour approval testing will delay our out put. We cannot test for all periods of time in the same airount of time available for 4-hour approval tests. Since you asked for this and we can accommodate your request, we want you to know of the ramifications. We had set up our protocol initially on a 4-hour basis, because this was arrived at by you and Dan Boyd during a previous meeting here at Rockville on the subject of respirators for VC. If there's anything further on the subject, please let me know. ASI-PR 0002322 THE WALL STREET JOURNAL, MONDAY, DECEMBER 16, 1974 (Page 6) , .Strict Vinyl Chloride Limits Due Jan 1, May BeDelayed hy Federal Court Ruling Bv Wall Street Journal staff Reporter ber, after more than 28 cases of angiosar NEW YORK - Imposition of Labor De- coma had been reported world-wide. But In partment standards to severely limit expo* dustry challenged the second stage a one- sure of workers to vinyl chloride, a gas part-per-milllon limit, due to begin Jan. 1, linked with more than two dozen cases of a as unnecessarily strict and impossible to rare liver cancer, might be delayed by a meet. federal appeals panel's decision. In addition to the Society of the plastics Permanent standards developed by the Industry, the concerns participating in the Labor Department's Occupational Safety appeal of the permanent standards are the and Health Administration, which would re Hooker Chemical Corp., a subsidiary of Oc quire companies to hold vinyl chloride cidental Petroleum Corp.; Union Carbide levels in the air workers breath to one part Corp.; Air Products Sc Chemicals Inc.; B. F. vinyl chloride per million parts of air, aver Goodrich Co.; Uniroyal Inc.; Dow Chemical aged over an eight-hour period,' are sched Co.: Firestone Tire ti Rubber Co. and Ten- uled to go into effect Jan. 1. But a special ncco Inc. three-judge panel of the Second Circuit Vinyl chloride is a widely used Industrial Court of Appeals here granted a stay until gas used mainly to make polyvinyl chloride, it could decide the merits of an appeal by or PVC, a plastic with many applications. ,the Society of the Plastics Industry and Use of the gas as a propellant in aerosol eight companies that oppose the new stand products has been banned. ards. About 8,000 workers are employed in The judges, retired U.S. Supreme Court plants that make vinyl chloride gas and-or Justice Tom O. Clark and Judges Frederick polyvinyl chloride, but the permanent stan i van Pelt Bryan and Kevin T. Duffy of the dards would also affect workers who fabri U.S. District Court of the Southern District cate PVC into a wide variety of finished of New York, have heard all the arguments products. The number of workers in the presented by the companies and by the Jus PVC fabrication industry has been variously tice Department, representing the Labor estimated at 350,000 to 700,000. | Department, and could conceivably rule on the merits of the appeal by Jan. 1. In the event they don't, however, standards in ef fect since last April that permit SO parts per million vinyl chloride would remain in force, the panel ruled. The 50-parts-per-million limit was issued by the labor agency unit as a temporary emergency standard last March, within weeks of the first reports that workers ex posed for several years to high concentra tions of vinyl chloride gas had died of liver angiosarcoma, a rare but invariably fatal cancer. The emergency standard went into effect last April, Prior to the JO-parts-per-mfllion limit, level3 of vinyl chloride in factory air were generally considerably higher, often reach ing several thousand parts per million. The temporary emergency level hceame the first stage of permanent standards in voked by the Labor Department last Octo ASI-PR 0002323 Plastics Corner Court of Appeals Stays Vinyl Chloride Order Pending Ruling on Case By WILLIAM H. LANDER vague, and can cause an un gress had properly delegated The plastics industry has ob due economic burden to many the legislative function of is tained a stay of the new stan small plants. suing the standard to the Sec dard on vinyl chloride ex Judge Clark pointed out that retary of Labor. posure pending a judicial re the government's brief con The motion for a stay was view of the order of the Secre tary of Labor of October 1. The three judge panel of the U. S. Court of Appeals for the Second Circuit Friday heard two hours of arguments on the case itself, and then a brief debate on the request for a stay of the order. The judges, after a brief deliberation, de cided that the case was too complex for immediate deci sion, so a stay was granted in the meantime. In other words, the order bringing the exposure limit down- to 1 part per million will not toe effective on Jan, 1, 1975, unless the judges rule in favor of the government be tween now and Dec. 30.. If the judges accept the in dustry petition, the standard will be sent back to the De partment of Labor for restudiy and re-issuance. The judges who heard the ca.'<* in Foley Square. New York City, were Tom Clark, former justice of the United States Supreme Court; retired judge Frederick Van Pelt Hvjan, ana Judge Kevan T. Duffy. From the questions they asked, it was impossible to detect the way tfreir in clinations might be leaning. The case was presented for The Society of the Plastics Industry and its PVC and VCM Committee, and also in behalf of Firestone Plastics, Air Pioducts, Diamond Sham rock, Hooker Chemical & Plastics, Uniroyal, and Union Carbide by a battery of law yers including Jerome H. Heckman, Allen J. Topol, Wal. teg R. Connolly, Jr., and John J. Cass.dy, Jr. The Depart, ment of Labor was defended by a lawyer from the Justice Department, Stephen F. Eilperin; and George H. Cohen and Lawrence Gold represented the AFL-CIO. The industry argued that the Secretary of Labor did not is sue the order on the basts of evidence brought out in the hearings; that the standard of 1 part -per million is not fea. si-ble, -and furthermoie that the OSHA regulations arc tended that a plant built in 1969 has brought the exposure level down to 1.2 ppm. The S-PI said) this was a Dow Chemical monomer plant, and that it is much harder to get exposures down in PVC plants. The sjpi said that even the government's consultant -- Foster Snell -- reported af ter tn.-'Pecting 26 PVC plants that 1 ppm cannot now be at tained. "The case should be re manded to the Secretary of Labor who should issue a new standard as soon as possible," Mr. Heckman said. "OSHA cannot raise the cancer spectre on industry and set up regulations which constitute burdens that cannot -be met." He urged that fabricators, who constitute 95 per cent of the vinyl industry, be ex empted from the standard. "The standard is void- be cause it is so vague," Mr. Connolly intoned for Firestone at one point. He contended that the government and the courts had handled the as bestos dust situation in a much more intelligent man ner. "The vinyl plants are sub ject to the whim and caprice of OSHA inspectors all over the country," he added. "We are willing to spend money to reduce levels on a reasonable basis.". He said the 13 record ed deaths in the U. S, had oc curred over a penod of -JO years and involved workers who were expo-ed to very high levels of vinyl chloride. The government contended that there is nothing in the standard that is not feasible, and that it was promulgated by the Secretary of Labor to ptotect workers not only from can-er, hut from other poss.ble infections also. The argu ment was made that various industries use tespirators, and it is not an excessive bunk-n for the vinyl woikers also to do so "Vinyl chloride is carcino genic There is no known safe j ievci of exposure,'' Mr. Cohen ' said, in contending that Con presented by Mr. Cassidy, for Union Carbide. He said that Union Carbide supplied vinyl to 1,500 customers from 41 warehouses. "The carriers and terminals have told Union Carbide that they will refuse to handle this after Januaty 1," he said. The government cortended that the standard was based on a law passed in 1971 which has not been changed, and that anybody ad versely affected by It can present his case in writing to the Secretary of Labor. The judges retired, then came back and said that due to the complexity of the case, they would not render a deci sion at this time, but would stay the order until they do so. JOURNAL OF COMMERCE Monday December 16, 1974 (Page 8) ASI-PR 0002324