Society of Plastics Industry, Inc. v. Occupational Safety and Health Admin.

Citation509 F.2d 1301
Decision Date31 March 1975
Docket NumberD,670 and 671,603--608,Nos. 505,s. 505
Parties5 Envtl. L. Rep. 20,157, 2 O.S.H. Cas.(BNA) 1496, 1974-1975 O.S.H.D. ( 19,248 The SOCIETY OF the PLASTICS INDUSTRY, INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al., Respondents. HOOKER CHEMICALS & PLASTICS CORPORATION et al., Petitioners, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al., Respondents. UNION CARBIDE CORPORATION, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR et al., Respondents. The B. F. GOODRICH COMPANY, Petitioner, v. Peter J. BRENNAN et al., Respondents. FIRESTONE PLASTICS COMPANY, a Division of the Firestone Tire & Rubber Company, Petitioner-Intervenor, v. UNITED STATES DEPARTMENT OF LABOR et al., Respondents. UNIROYAL INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al., Respondents. GENERAL DYNAMIC CHEMICAL CO., INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al., Respondents. The DIAMOND SHAMROCK CHEMICAL CO., INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION et al., Respondents. ockets 74--2284, 74--2286, 74--2308, 74--2345, 74--2449, 74--2450, 74--2491, 74--2585 and 74--2609.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

John J. Cassidy, Jr., Chicago, Ill. (Vedder, Price, Kaufman & Kammholz, Chicago, Ill., on the brief), for petitioners.

Stephen F. Eilperin, Asst. Chief, Appellate Section, Civil Div., Dept. of Justice, Washington, D.C., for respondents.

George H. Cohen, Washington, D.C. (Bredhoff, Cushman, Gottesman & Cohen, Washington, D.C., on the brief), for intervenor Industrial Union Department, AFL--CIO.

Lawrence Gold, Washington, D.C. (Woll, Mayer & Gold, Washington, D.C., on the brief), for intervenor AFL--CIO.

Allan Topol, Washington, D.C. (Covington & Burling, Washington, D.C., on the brief).

Jerome H. Heckman, Washington, D.C. (Keller & Heckman, Washington, D.C., on the brief).

Walter B. Connolly, Jr., Akron, Ohio, Firestone Tire and Rubber Company.

An amicus curiae brief was filed on behalf of Chemical Fabrics & Film Association.

Before CLARK, Associate Justice, * BRYAN, District Judge, ** and DUFFY, District Judge. ***

Mr. Justice CLARK:

This is a petition for review of the health and safety regulations for the vinyl chloride industry, 29 C.F.R. § 1910.93q, promulgated by the Secretary of Labor on October 4, 1974, pursuant to the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (hereinafter OSHA). The standard and the Secretary's statement of reasons for its imposition are set forth at 39 Fed.Reg. 35890--35898. In brief, the Secretary has adopted a standard which requires that no worker is to be exposed to concentrations of vinyl chloride in excess of one part per million (ppm) averaged over any eight-hour period. 29 C.F.R. § 1910.93q(c)(1).

Petitioners--manufacturers of vinyl chloride and vinyl chloride products--make five principal claims: (1) the available scientific and medical evidence does not establish that the 1 ppm exposure level adopted by the Secretary is required by health or safety considerations; (2) that the Secretary violated the requirements of 29 U.S.C. § 655(b)(5) by adopting a standard which is technologically and economically infeasible for the industry to meet; (3) that the standard is so vague and uncertain in its terms that enforcement will violate the requirements of due process; (4) that there was no substantial evidence in the record to support the Secretary's conclusion that those who fabricate products out of vinyl chloride should be subject to the same requirements as those who produce vinyl chloride; and (5) that the Secretary's sign and labelling requirements unduly and hence unlawfully emphasized the carcinogenic properties of vinyl chloride. We find these contentions meritless, and the petitions for review are accordingly denied.

I. SCOPE OF JUDICIAL REVIEW

Before proceeding to an examination of the regulations at issue in this case, it would be wise to reemphasize the unique nature of the court's role under OSHA. Although the statute sets forth general policy objectives and a procedural framework, the formulating of specific safety and health policies is left to the Secretary, subject to review in the United States Courts of Appeals. Our mandate is contained in 29 U.S.C. § 655(f), which states in relevant part The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.

Yet the traditional 'substantial evidence' test is almost impossible of application where, as here, the Secretary's decision-making is essentially legislative in character.

The problems involved in according judicial review in such circumstances have been wisely discussed by Judge McGowan in Industrial Union Department, AFL--CIO v. Hodgson, 162 U.S.App.D.C. 331, 499 F.2d 467 (1974), who pointed out that, under OSHA:

(T)here are areas where explicit factual findings are not possible, and the act of decision is essentially a prediction based upon pure legislative judgment, as when a Congressman decides to vote for or against a particular bill.

(P)olicy choices of this sort are not susceptible to the same type of verification or refutation by reference to the record as are some factual questions. Consequently, the court's approach must necessarily be different no matter how the standards of review are labeled. (499 F.2d at 474--475.)

In these circumstancss, Judge McGowan concluded, the reviewing court must recognize that its task defies generalized description and go from there to achieve its paramount objective which 'is to see whether the agency, given an essentially legislative task to perform, has carried it out in a manner calculated to negate the dangers of arbitrariness and irrationality in the formulation of rules for general application in the future.' Automotive Parts & Accessories Assn. v. Boyd, 132 U.S.App.D.C. 200, 407 F.2d 330, 338 (1968).

Thus armed with these salutary remarks on our limitations and our obligations, we turn to the challenged regulations. The examination of the 4,000-page record in this case has been a prodigious task, aggravated by duplications of testimony, irrelevant exhibits and letters, almost illegible reproduction of documents, and a generally blunderbuss approach in petitioners' briefs. Given the task, however, we have performed it and conclude that the standard laid down by the Secretary is fully supported by the record and well within the requirements of Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and Assoc. Industries of New York State, Inc. v. Department of Labor, 487 F.2d 342 (2d Cir. 1973), as well as Industrial Union Department, AFL--CIO v. Hodgson, supra.

II. BACKGROUND

There are three basic components of the vinyl chloride industry. First, there are the manufacturers of vinyl chloride itself. A gas at ambient temperatures and pressure, vinyl chloride monomer (VCM) is primarily synthesized by the oxychlorination of ethylene in a handful of large outdoor production plants which resemble oil refineries. Shell, Dow, and Goodrich are the leading producers, accounting for some 50% of the 5.2 billion pounds annually available in the United States. Because of the high degree of automation involved in this manufacturing process, only some 1,500 workers are employed in VCM production. VCM plants are open-air facilities, primarily in the South.

Second, there are the manufacturers of polyvinyl chloride (PVC). Virtually all vinyl chloride is polymerized into thermoplastic PVC resin which serves as the basis for a wide variety of useful plastic products. Goodrich is by far the largest single producer, producing some 20% of the country's 5.4 billion pounds annually, though in total there are only 21 companies operating the 37 PVC plants. Historically, PVC production has been a 'batch' or non-continuous operation carried out in relatively small (2,000-6,000 gallon) 'reactors' which require frequent cleaning; the trend, however, is towards substantially larger reactors. PVC plants are not open-air facilities and are generally located in colder climates than VCM plants. They employ some 5,000 workers.

Third, and finally, there are the fabricators of products which utilize PVC resins. Innumerable firms throughout the country, employing thousands of workers, compound PVC with plasticizers, heat stabilizers, lubricants, light stabilizers, flame retardants, or impact modifiers to produce an astounding variety of wares, such as pipes and conduits for building and construction, flooring, wire and cable, furniture, phonograph records, and packaging. In fabrication, residual VCM that has been entrapped in the PVC resin escapes during the heating process, and in this way workers in the fabricating industry are also exposed to vinyl chloride.

It is now clear that the workers in all components of the vinyl chloride industry are subjected to a serious health risk from VCM. Although conclusive proof of the carcinogenic and, in turn, fatal character of VCM did not emerge until early in 1974 when the deaths of three workers in Goodrich's PVC plant at Louisville were reported, strong warning signals had appeared long before. As early as 1949, when the vinyl chloride industry had barely reached its tenth anniversary, a study conducted among vinyl chloride workers in the Soviet Union found liver damage in 15 of 45 workers studied, and in 1958 and 1959, Dow Chemical scientists elicited liver irregularities in rats and rabbits at a 100 ppm concentration of VCM. Although Dow recommended a 50 ppm allowable level in 1961, the industry adhered to its previous 500 ppm standard.

We need not outline in detail the morbid 'Vinyl Chloride Chronology', published by an industry spokesman, the Manufacturing Chemists Association (MCA), in a 1974 press release (Joint Appendix at 134-145) in order to...

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