565 F.2d 240 (2nd Cir. 1977), 96, Marshall v. Western Elec., Inc.

Docket Nº:96, Docket 77-4076.
Citation:565 F.2d 240
Party Name:Ray MARSHALL, Secretary of Labor, Petitioner, v. WESTERN ELECTRIC, INC., and Occupational Safety and Health Review Commission, Respondents.
Case Date:November 04, 1977
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 240

565 F.2d 240 (2nd Cir. 1977)

Ray MARSHALL, Secretary of Labor, Petitioner,

v.

WESTERN ELECTRIC, INC., and Occupational Safety and Health

Review Commission, Respondents.

No. 96, Docket 77-4076.

United States Court of Appeals, Second Circuit

November 4, 1977

Argued Oct. 17, 1977.

Page 241

Dennis K. Kade, U.S. Dept. of Labor, Washington, D.C. (Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, and Michael H. Levin, counsel for App. Litigation, U.S. Dept. of Labor, Washington, D.C., on the brief), for petitioner.

Laurel J. McKee, New York City (Robert A. Levitt, and Lawrence M. Joseph, New York City, on the brief), for respondent Western Electric Co., Inc.

Before WATERMAN, ANDERSON and MANSFIELD, Circuit Judges.

ANDERSON, Circuit Judge:

The Secretary of Labor petitions for review of an order of the Occupational Safety and Health Review Commission, which held that respondent, Western Electric, Inc., did

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not violate the Emergency Temporary Vinyl Chloride Standard issued by the Secretary under the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. §§ 651, et seq. The Secretary complains that Western Electric violated 29 C.F.R. § 1910.93q(c)(1) by failing to monitor the air in every work area in which vinyl chloride gas was released to determine whether the air contained vinyl chloride in concentrations exceeding 50 ppm (parts per million). 1

Western Electric operates a plant in Lee's Summit, Missouri, which produces electrical components. As a part of the process for insulating these components, heated metal rings are dipped into a compound known as "Hysol," a plastisol containing polyvinyl chloride suspended in a liquid plasticizer. When Hysol is heated to a temperature of 360o F. by the metal rings, the polyvinyl chloride fuses with the plasticizer and coats the rings. At the same time, the polyvinyl chloride releases vinyl chloride into the air in the form of gas.

In early 1974, the Occupational Safety and Health Administration (OSHA) determined that vinyl chloride was a carcinogenic agent which, if breathed in sufficient quantities, could cause cancer of the liver. Based on this information, the Secretary issued an emergency temporary standard to regulate the presence of vinyl chloride in working areas. 29 U.S.C. § 655(c). 2 These regulations, published in the Federal Register on April 5, 1974, stated, in part, that "(a)s soon as possible but not later than April 22, 1974, every employer of an employee working in an area of operation in which vinyl chloride is manufactured, reacted, handled, processed, released, repacked or stored shall begin monitoring the ambient air of the area to determine whether it contains vinyl chloride in concentrations in excess of 50 ppm." The only operations exempt from this monitoring requirement were those involving the handling, storage, or other use of polyvinyl chloride in the form of fabricated products. 29 C.F.R. § 1910.93q(a)(2). 3

Western Electric did not begin testing for the presence of vinyl chloride in the air at its Lee's Summit plant until May, 1974. Mr. Alan Widner, an industrial hygienist for Western Electric, decided that because the plant used neither vinyl chloride nor polyvinyl chloride resin as a raw material, its operations were not subject to the monitoring requirements of the emergency standard. Because of his concern for the safety of the workers in the plant, however, he monitored the operation which he concluded

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would release the most vinyl chloride, i. e. the welding of polyvinyl chloride sheets. After determining that the ambient air in the area of this operation contained vinyl chloride in concentrations well within the range acceptable to the Secretary, Mr. Widner assumed that workers in other areas of the plant would be safe from vinyl chloride exposure and, therefore, did not monitor any other plant operations.

On May 31, 1974, the Lee's Summit plant was inspected by an OSHA representative, Mr. Albert Stewart, who learned that the air in the area of the Hysol-dipping operation had not been monitored for the presence of vinyl chloride. He took three samples of the air in the tank, one of which revealed vinyl chloride in the air at a concentration of 1.7 ppm. As a result of this inspection, the Secretary issued Western Electric a citation and notice of proposed penalty for failing to monitor the air surrounding the tank containing Hysol to determine whether it contained excessive amounts of vinyl chloride. Although Western Electric admitted that it had failed to monitor the area, the company denied that it had violated § 1910.93q(c)(1) of the emergency standard. Western Electric argued that the regulations were inapplicable to the operation because Hysol was a fabricated product and that, in any event, no vinyl chloride was "released" within the meaning of the standard because the concentration of vinyl chloride in the air did not exceed 5 ppm. 4

A hearing was held before an administrative law judge on January 8, 1975, at which Mr. Stewart, an OSHA chemist, Mr. Widner, and a chemical analyst for Western Electric testified. After reviewing the testimony, the administrative law judge affirmed the Secretary's citation; but, in light of Western Electric's record of concern for the safety of its employees and eagerness fully to comply with the Act, he vacated the proposed monetary penalty. He rejected Western Electric's argument that Hysol was a fabricated product and, therefore, exempt from the emergency temporary vinyl chloride standard because the process of coating heated metal rings with Hysol involved a reaction between polyvinyl chloride and the liquid plasticizer at which time vinyl chloride was released. He concluded that this operation was a form of fabrication to which the standard was applicable. See Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301 (2d Cir.), cert. denied, 421 U.S. 992, 95 S.Ct. 1998, 44 L.Ed.2d 482 (1975). He also rejected Western Electric's claim that in order to constitute "release of vinyl chloride," readings taken of the ambient air must exceed 5 ppm. He held that the 5 ppm level was selected by the Secretary, for purposes of the standard, as the concentration of vinyl chloride gas which monitoring devices must be capable of detecting and not as a benchmark by which to decide whether or not vinyl chloride was being released. Relying on the plain language of the standard, which requires physical monitoring of any operation releasing vinyl chloride gas, he

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held that Western Electric had violated the standard by failing to monitor the ring-coating process.

Western Electric obtained discretionary review, under 29 U.S.C. § 661(i), by the Commission, which set aside the administrative law judge's decision and vacated the citation. The Commission held that Western Electric could reliably predict from the physical circumstances that the concentration of vinyl chloride in the air resulting from the coating operation would be well below the danger level set by the Secretary; and, therefore, formal physical monitoring was not required. It reasoned that the standard was designed to protect employees from the grave danger of exposure to vinyl chloride concentrations in excess of 50 ppm and that it would, therefore, be unreasonable to interpret the standard to require the useless act of monitoring in situations in which there was no realistic possibility that the 50 ppm limit would be approached. Because of this ruling that monitoring was unnecessary, the Commission did not reach the question of whether Hysol was, in itself, a fabricated product...

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