Appendix — Industrial Union Dept., AFL-CIO v. American Petroleum Institute

Supreme Court brief1980

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AMERICAN PerroLetM INSTITUTE, CHieMICAL SPECIALTIES MANUFAC-

ELLIOT BREDHOFF

(ieneral Counsel Weinbere

Industrial Union Deprt..

1000 Connecticut Aveutte, N.W.,

Washington, D.C, 20036 Attorneys for Petitioner

IN THE

Supreme Court of the Unie GRawED

QOcTober Tero, 197

TE

ae pif OFFICE UF THE CLERK

INpustRIAL PN1oN Dr sping xt, AFL-( ‘Kip Ae 4K Rn Ws

dl

TURERS ASSOCIATION, MANUFACTURING CHEMISTS ASSOCIATION,

NATIONAL PETROLEUM REFINERS ASSOCIATION, AMERICAN

Perrovin« INcorporatep, ATLANTIC RicuriseLp COMPANY, ~

CITIFS Servick COMPANY, CONTINENTAL Olu COMPANY, DELTA

Ou Company, Exxon Corporation, Guir Om CoMPANy,

MARATHON Or Company, PHILLIps PETROLEUM COMPANY,

SHELL Oi COMPANY, SoutH HAMpron Om Company, STAND-

ARD Ol. COMPANY (INDIANA), STANDARD O1L COMPANY OF OHIO,

“ux Om ComMPANY OF PENNSYLVANIA, SUN OiL COMPANY OF

Deva ware, Texaco INc.. UNton Ott COMPANY or CALIFORNIA

Recoper Mancuracturerss Association, INc.. Firestone Tire &

Rusper CoMPany, GENERAL Tire & Rupber Company, B. F.

GOODRICH COMPANY, GOODYEAR Tire & RuBBER Co.PANY

E. I. pt Pont pe NEMOURS AND COMPANY

ARMSTRONG RuBpBER COMPANY AND Uniroyal, COMPANY

INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA

AMERICAN IRON AND Stern. INstituTe, BETHLENEM SreeL CoRPoRA-

TION, CycLops CORPORATION, JONES AND LAUGHLIN STEEL Cor-

PORATION, NATIONAL STEEL CorpPoRATION, Repceuic STEEL

CORPORATION, SHENANGO INCORPORATED, UNITED Strates STEEL

CORPORATION

AND

OcCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

ee

etiponacEe IH. COHEN

Of Counsel : e—eoneRrT M. WEINBERG

JereMian A. COLLINS

Brechoff. Gottesman. Cohen &

1000 Connecticut Avenue, N.W.

AFL-CIO Washington. D.C. 20036

33 ie

TABLE OF CONTENTS

Page

Opinion of the Court of Appeals ..............ccccceeeeeees la

Standard for Occupational Exposure to Benzene .... 34a

Statement of Reasons of the Secretary of Labor .... 66a

Amendment of the Standard for Occupational

Nee i. cccsnsenseoqesoosepare 252a

Order of the Court of Appeals ..............csscssesseseseeees 2538a

Judgment of the Court of Appeals «ccc 2d54a

YC ap

4

APPENDIX A

THE AMERICAN PrerroLeum INSTITUTE ET AL. Petitioners

b] ,

THE MANUFACTURING CHEMISTS ASSOCIATION AND THE CHEMI-

«|

CAL SPECIALTIES MANUFACTURERS Association, Intervenors,

v.

OccupaTIONAL Sarety anp HEautu ADMINISTRATION ET AL.,

Respondents,

INpustriaL Union Departm ENT, AFL-CIO, Intervenor.

Nos. 78-1253, 78-1257, 78-1486, 78-1676, 78-1677,

78-1707 and 78-1745,

United States Court of Appeals, Fifth Circuit.

Oct. 5, 1978.

On Petitions for Review of an Order of the Occupational

Safety and Health Administration.

Before Cotemay, Ciark, and Tsoriat, Circuit Judges.

Crarves Ciark, Circuit J udge:

This case presents consolidated petitions for review! of

* The petitioning or intervening producers of benzene and ben-

zene-containing products are the American Petroleum Institute on

behalf of itself and member companies; the American Iron and

Steel Institute\on behalf of itself and member companies ; the Inde-

pendent Petroleum se Sree of America on behalf of itself and

member companies; and the Manufacturing Chemists Association

on behalf of itself and methber companies. The petitioning or inter-

vening users of benzene and benzene-containing products are the

Rubber Manufacturers Association on behalf of itself and member

companies; the Armstrong Rubber Company and Uniroyal, Inc.;

E. I. du Pont de Nemours and Company ; and the Chemical Special-

ties Manufacturers Association on behalf of itself and member com-

panies. The grouping of the petitioners into the producer or user

category was made in order to coordinate the briefing and arguing

of this case, and this opinion will continue to refer to those cate-

gories.

2a

a new health standard limiting occupational exposure to

henzene? promulgated by the Occupational Safety and

Health Administration of the Department of Labor

(OSHA), pursuant to the Occupational Safety and Health

Act, 299 ULS.CLA, § 651 ef seg. (1975) (the Act). The basis

for the standard is OSH.A’s determination that benzene is

a carcinogen for which there is no known safe level of

exposure. Briefly, the standard requires employers to assure

that no employee is exposed to an airborne concentration of

benzene in excess of one part benzene per million parts of

air (1 ppm) averaged over an eight-hour day,* it requires

employers to assure that no employee is exposed to dermal

contact with liquid benzene,t and it requires employers to

assure that caution labels are aflixed to all containers of

products containing benzene and that the labels remain

wlixed when the product leaves the employer's workplace.®

In addition, the standard imposes numerous compliance re-

quirements for ‘feach place of employment where benzene is

produced, reacted, released, packaged, repackaged, stored,

‘The standard, to be codified at 29 C.F.R. § 1910,1028, and

OSTLA’s statement of reasons in support of the standard are pub-

lished at 43 Fed. Reg. 5918-70 (1978).

* The ceiling limit is 5 ppm as averaged over any fifteen minute

period.

#OSILA promulgated an amended standard the day before oral

argument of this ease which exempted from the scope of the stand-

ard all work operations where the only exposure to liquid benzene

or its vapors is from liquid mixtures containing 0.5 pereent (0.1

percent after June 27, 1981) or less of benzene by volume, 43 Fed.

Rew, 27,962-71 (1978). The original standard’s absolute prohibition

of dermal contact with any liquid containing any amount of benzene

is therefore no longer in existence. The effect of this amendment on

the issues in this case will be discussed infra.

® Not only does the scope of the amended standard affect the label-

ine requirement, but the amended standard also exempts from the

labeling requirement liquid mixtures containing 5.0 percent or less

benzene by volume which were packaged before June 27, 1978.

3a

transported, handled, or used,’? with certain exceptions.

These requirements include initial and continual exposure

monitoring, engineering and work practice controls to re-

duce and maintain exposure below the permissible level,

respiratory protection to prevent excessive exposure in

limited situations, protective clothing and equipment to pre-

vent dermal contact with liquid benzene, initial and con-

tinual medical surveillance, employee training programs,

and retention of records regarding exposure monitoring

and medical surveillance.

The petitioning producers and users of benzene and ben-

zene-containing products principally attack the reduction

of the permissible exposure limit to 1 ppm, the prohibition

of dermal contact with liquids containing benzene, and the

labeling requirements for such liquids. The petitioners also

attack several of the ancillary provisions of the standard

including its broad scope, the monitoring and medical nt

veillance requirements, and the specification of mandatory

engineering and work practice controls.

I,

The Act authorizes the Secretary of Labor? to promul-

gate occupational safety and health standards. 29 U.S.CLA.

§ 650, An ‘occupational safety and health standard’? is de-

fined as ‘a standard which requires conditions, or the adop-

tion or use of one or more practices, means, methods, opera-

tions, or processes, reasonably necessary or appropriate to

provide safe or healthful employment and places of employ-

ment’? 29 U.S.C.A. §652(8). In promulgating standards

* Presently the permissible exposure limit for benzene is 10 ppm

29 C.F.R. § 1910.1000 Table Z-2 (1977). This standard has been a

existence since 1971.

™This authority has been delegated to the Assistant Secretary of

Labor for Occupational Safety and Health, the chief executive

officer of OSITA. References to the Secretary and OSHA are used

interchangeably in this opinion.

4a

dealing with toxic materials, such as benzene, the Secretary

is required to

set the standard which most adequately assures, to the

extent feasible, on the basis of the best available evi-

dence, that no employee will suffer material impair-

ment of health or functional capacity even if such em

ployee has regular exposure to the hazard dealt with

by such standard for the period of his working life. De-

velopment of standards under this subsection shall be

hased upon research, demonstrations, experiments, and

such other information as may be appropriate. In addi-

tion to the attainment of the highest degree of health

and safety protection for the employee, other considera-

tions 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 staidard promulgated shall

be expressed in terms of objective criteria and of the

performance desired.

29 ULS.CLA. § 655(b) (5). When necessary or appropriate,

standards may prescribe labels or other forms of warning,

protective equipment, control or technological procedures,

exposure monitoring, and medical examinations, 29 U.S.C.A.

§ 655(b) (7).

Judicial review of occupational safety and health stand-

ards is authorized by 29 U.S.C.LA. § 655(f), and on re-

view ‘* [t]he determinations of the Secretary shall be con-

clusive if supported by substantial evidence in the record

considered as a whole.’* Several courts, including this one,

have pointed out the problems involved in attempting to

apply the traditional substantial evidence test in assessing

OSHA standards resulting from informal rulemaking, F.¢.,

Associated Industries of New York State, Inc. v. United

States Department of Labor, 487 F.2d 342, 347-50 (2d Cir.

1973); Florida Peach Growers Association, Inc. v. United

States Department of Labor, 489 °.2d 120, 127-29 (Sth Cir.

oa

1974); Industrial Union Department, AFL-CIO vy. Hodg-

son, 162 U.SApp.D.C. 331, 336-340, 499 F.2d 467, 472-76

(1974); Synthetic Organic Chemical Manufacturers Asso-

ciation Vv. Brennan, 503 F.2d 1155, 1158-60 (38d Cir. 1974).

The problem centers not on how to apply the test to factual

findings subject to evidentiary development, but rather on

how to review legislative-like policy judgments. With re-

spect to the former, the substantial evidence standard pro-

vided in the statute clearly is applicable. See, e.g., Indus-

trial Union De partment, AIL-C1O vy. Hodgson, supra, 499

M2d at 474: American lron & Stecl Institute, et al. v. OSHA,

O77 F.2d go5, No, 76-2358 et al. (3d Cir., filed March 28,

1978). Policy choices, though not so susceptible to verifica-

tion or refutation by the record, must be scrutinized never-

theless. See Associated Industries of New York, Inc.

United States Department of Labor, supra, 487 F.2d at 348.

Although the courts have differed in their articulation of

the standard of review of these policy judgments, they have

required the Secretary’s action to be consistent with the

statutory language and purpose. Synthetic Organic Chem-

ical Manufacturers Association vy, Brennan, supra, 503 F.2d

at 1159, As this court stated in assessing an emergency

temporary standard in Florida Peach Growers, ‘it seems

clear that even with the required substantial ey idenee test,

our review basically must determine whether the Secretary

carried out his essentially legislative task in a manner

reasonable under the state of the record before him.’? 489

K.2d at 129. This includes, of course, a review of whether

the Secretary exercised his decisionmaking power within

the limits imposed by Congress.

I.

Benzene is a ubiquitous hydrocarbon compound (CeHe)

that is manufactured for a wide variety of industrial uses.

* Although benzene does oecur naturally in small quantities (a

few parts per billion) in certain substances, including the ambient

Ou

The petro-chemical and petroleum refining industries are

responsible for 94 percent of the total domestic production

of benzene, and the steel industry produces the remaiming

G percent primarily as a by-product of the coking process.

The primary use of benzene is as a feedstock in the manu-

facture of other organic chemicals; it is also uses? in the

manufacture of detergents, pesticides, solvents, and paint,

and as a solvent and reactant in chemical laboratories. In-

dustries currently using benzene include the chemical, print-

ing, lithograph, rubber cements, rubber fabricating,” paint,

varnish, stain removers, adhesives, and petroleum indas-

tries. Among the products that contain benzene are motor

fuels such as gasoline, which contain up to 2 percent benzene.

Benzene has been recognized since 1900 as a toxie sub-

stance capable of producing acute and chronic nomnalig-

nant effects in humans. When benzene vapors are inhaled,

the benzene diffuses rapidly through the lungs and is quick-

ly absorbed into the blood. Acute circulatory failure result-

ing in death within minutes often accompanies exposure to

benzene concentrations as high as 20,000 ppm. Other acute

effects of exposure to milder, though still high (250-500

ppm), concentrations of benzene include vertigo, nervous

excitation, headache, nausea, and breathlessness. When

exposure is stopped, rapid recovery from these symptoms

usually occurs.

air, it is produced in substantial quantities by the petroleum and

steel industries. The production of benzene is rapidly expanding,

and at present only eleven other chemicals and only one other

hydrocarbon are produced in greater tonnage in the United States,

Nee 43 Fed. Reg. 5918.

* According to the rubber companies, the manufacture of tires

requires the use of petroleum solvents which generally contain small

amounts of benzene,

7a

The most common nonmalignant effects of chronic ex-

posure to low’ benzene concentration levels are a non-

functioning bone marrow and deficiencies in the formed

elements of the blood." The degree of severity of such

disorders ranges froim mild and transient episodes to se-

vere and fatal effects. Chromosomal aberrations have also

been associated with chronic benzene exposure, and derma-

titis or other dermal infections can he caused by direct bod-

ily contact with liquid benzene.

As a result of its toxicity, benzene’s history has been

one of regulation. In 1946, the American Conference of

Governmental Industrial Hygienists recommended a thresh-

old limit value for benzene exposure of 100 ppm. This value

was reduced to 50 ppm in 1947, to 35 ppm in 1948, to 25

ppm in 1963, and to 10 ppm in 1974. The American National

Standards Institute adopted a threshold limit value of 10

ppm in 1969, which OSHA adopted in 1971 without rule-

inaking under the authority of 29 U.S.C.A. § 665(a)." This

standard, codified at 29 CLE.R. § 1910.1000 Table Z-2 (1977)

' These toxic effects were documented at exposure levels above

25-40 ppm, and a few studies showed nonmalignant blood abnor-

malities at levels below 25 ppm. 43 Fed. Ree, 5924-25,

"A decline in the red blood cell count (anemia) results in a

decreased capacity of the blood to carry oxygen to various parts

of the body and is characterized by fatigue. A decline in the white

blood cell count (leukopenia) reduces the capacity of the body to

defend against disease and is characterized by reeurrent infections.

A decline in the platelet count (thrombocytopenia) results in an

impaired clotting of the blood and is characterized by bleeding

tendencies.

29 U.S.C.A. § 655(a) directed the Secretary, within two years

after the effective date of the Act and without rulemaking, to prom-

ulgate as an occupational safety or health standard any national

consensus standard that he determined would result in improved

safety or health for employees, The purpose of this power was to

make the Act effective immediately, and the power expired on

April 28, 1973.

Sa

and still in effect, was based on the nonmalignant toxic

effects of benzene exposure and not on any possible leu-

kemia hazard.

Widely scattered through the benzene literature are stud-

ies suggesting a link between benzene exposure and leu-

kemia, a usually fatal cancer of the blood-forming organs.

During the 1970’s several additional studies reported a

statistically significant increased risk of leukemia among

workers occupationally exposed to high levels of benzene

and concluded benzene was a leukemogen.” As a result of

18 One such study was reported in 1975 by Dr. Enrico Vigliani.

In 1963, Dr. Vigliani participated in a study of workers exposed

to resins, inks, varnishes, and glues containing various amounts of

benzene, and found a risk of leukemia among these workers twenty

times greater than that for the general population, Toluene was

substituted for benzene in 1964 in one of the industries studied,

and the 1975 study showed no new cases of leukemia among workers

in that industry.

A second study was reported in 1972 by Dr. Muzaffer Aksoy, a

hematologist who testified at the rulemaking hearing. In this study

Dr. Aksoy reported four leukemia deaths among Turkish shoe-

makers resulting from their exposure to benzene concentrations in

excess of 150 ppm for periods ranging from six to fourteen years,

and at the hearing he estimated that the incidence of leukemia

among the population he studied was twice what would have been

expected for the population as a whole, Dr. Aksoy also noted a

decline in leukemia cases after ‘other solvents were substituted for

benzene. ey

The study most heavily relied upon by OSILA was one reported

by Dr. Peter Infante of the National Institute for Occupational

Safety and Health, a body created to conduct research and recom-

mend occupational safety and health standards. See 29 U.S.C.A.

$$ 669-71. Dr. Infante studied workers exposed to benzene in the

production of Pliofilm at Goodyear’s Akron and St. Mary’s plants

between 1940 and 1949 and found among them a five-fold increased

risk of dying of leukemia when compared to two control groups.

No specific exposure level during the period covered by the study

was established, but testimony at the hearing indicated that ex-

EN etestrdiree ss —.*

this new evidence, OSTLA began procedures which culminat-

ed with the present proposal, among other things, to reduce

the permissible exposure level frour 10 ppm to 1 ppm.

In January 1977 OSHA issued voluntary Guidelines for

Control of Occupational Mxposure to Benzene recommend.

ing exposure not to exceed an eight-hour time-weighted

average of | ppm. An Emergency Temporary Standard for

Occupationak Mxposure to Benzene also providing for a

reduction in the permissible exposure limit to 1 ppm™ was

issued in May 1977, but this standard never went into effect

because of judicial challenges. The proposed permanent

benzene standard, which was based on OSHA’s determina-

tion that the available scientific evidence established that

employee exposure to benzene presents a leukemia hazard

and that exposure therefore should be limited to the lowest

feasible level, was published on May 27, 1977. This pro-

posal provided for a reduction in the permissible exposure

limit from 10 ppm to 1 ppin and established requirements

relating to dermal and eye contact,!® exposure monitoring,

inedical surveillance, methods of compliance, labeling, and

recordkeeping. Public hearings were held July 19 through

August 10, 1977, at which 95 witnesses testified. In addition,

numerous exhibits and documents were submitted to OSHA

as part of the rulemaking record. The resulting permanent

benzene standard was promulgated on February 3 and pub-

. on February 10, 1978, with a March 3, 1978 effective

date.

posure was probably around 100 ppm during most of the period

studied with occasional exposure levels as high as several hundred

parts per million.

™ Both the Guidelines and the Emergency Temporary Standard

exempted work operations where the only exposure to benzene was

from liquids containing 1 percent or less of benzene hy volume.

'® The proposed permanent statement also exempted work opera-

tions where the only exposure to benzene was from liquid mixtures

containing 1 percent (0.1 percent after one year from the effective

date of the standards) or less of benzene by volume.

1Oa

ITI.

The American Petroleum Lustitute on behalf of itself and

iwember companies filed petitions for review of the standard

in this court on February 2 and February 3, 1978. The Amer

ican tron and Steel Institute, the Independent Petroleum

Association of America, the Manufacturing Chemists Asso

ciation, the Rubber Manufacturers Association, the Arm

strong Rubber Company and Uniroyal, Ine., BH. Edu Pont

de Nemours and Company, and the Chemical Specialties

Manufacturers Association subsequently either intervened

on behalf of the American Vetroleum Institute or filed

original petitions for review in other circuits that were

transferred to this eirevit and consolidated with the Amer

iern Petroleum Institute case, In addition, the Industrial

Union Department, AFPL-CLO, intervened on behalf of

OSHA in support of the standard, '*

he petitioners filed motions for a stay of the standard

pending review on Mareh 10, 1978, and on March 13 a judge

of this court issued a temporary stay of the standard pend

ing a hearing before a three-judge panel. The issues con

cerning the stay were fully briefed by the parties on an

expedited basis, and after hearing oral argument a panel

of the eourton April 18, 1978, ordered a stay of the standard

to be continued pending disposition of the petitions for

review"?

The principal argument of the petitioning producers of

benzene and benzene-containing products is that substantial

evidence and the best available evidence do not show that

the reduction of the permissible exposure limit trom 10

Although we speak generally in this opinion about the conten-

tious of the petitioners and the contentions of OSILA, the Industrial

Union Department was an active participant in this ease and

offered sonsiderable support to OSHA's position,

Phe issuance of a stay pending judicial review is authorized

by 29 ULS.CLA. § 655(f).

———— —

lla

ppm to | ppm is reasonably necessary or appropriate to

provide safe or healthful ermiployment and places of em-

ployment. These petitioners also attack several of the an-

cillary provisions of the standard, including its broad seope,

the monitoring and medical surveillance requirements, and

the specification of mandatory, primary means of compli-

ance, as not being supported by substantial evidence that

they are reasonably necessary or appropriate to provide

safe or healthful employment. The attack of the petitioning

users of benzene and benzene-containing products is two-

fold: (i) They contend that substantial evidence and the

best available evidence do not show that the dermal contact

prohibition is reasonably necessary or appropriate to pro-

vide safe or healthful employment, and that the dermal

contact prohibition is not feasible; and (ii) they contend

that substantial evidence does not show the labeling re-

quirement to be reasonably necessary or appropriate to

provide safe or healthful employment, that the labeling

requirement is not feasible, and that the labeling require-

ment is beyond OSILA’s jurisdiction. OSHA, in addition to

arguing that substantial evidence, the best available -evi-

dence, feasibility considerations, and its statutory mandate

to protect workers justify the standard in its entirety, con-

tends that Congress imposed on it no substantive require-

ihent to promulgate only standards that are reasonably

necessary or appropriate to provide safe or healthful em-

ployment and places of employment,

On June 21, 1978, the day before oral argument, OSHA

~ promulgated an amended standard to exempt from the

scope of the benzene standard work operations where the

mly exposure to benzene is from liquid mixtures contain-

ihe 0.5 percent (0.1 percent after June 28, 1981) or less of

nzene by volume, and to exempt from the labeling require-

ments liquid mixtures containing 5.0 percent or less benzene

by volume which were packaged before June 27, 1978. 43

Med. Reg. 27,971 (1978). Although the proposed emergency

12a

temporary standard and the proposed permanent standard

had exempted work operations where exposure to benzene

resulted only from liquid mixtures containing | percent or

less of benzene by volume,'® the permanent standard that

Was promulgated contained no such exemption, As a result,

the permanent standard prohibited all dermal contact with

liquids containing any amount of benzene and it imposed

the labeling requirements on all such liquids. Several in.

dustry groups pétitioned OSILA for a stay of the dermal

contact prohibition and labeling requirements as they ap

plied to liquids containing small amounts: of benzene.

OSHA subsequently granted a stay as to work operations

where the sole exposure to benzene was from mixtures con

taining 0.1 percent or less of benzene and instituted a new

rulemaking proceeding which resulted in the June 21, 1978

amendment,

The court called for supplemental briefing to address the

effect of this amendment on the issues already briefed and

argued, This briefing has been completed, and it appears

that the major effect of the amendment is on the arguments

regarding the feasibility of the dermal contact and labeling

provisions. Since the considerations associated with the

feasibility of those provisions have been significantly

changed by the amendments, we do not address the merits

of the feasibility arguinents in this opinion.

As noted above, the exemption in the proposed permanent

standard fell to O11 percent after the first vear.

These petitioners, who generally were among the user petition-

ers in this case, sought relief on the grounds that OSTLA failed to

provide adequate notice that the final standard might contain no

exemption for work operations where the only benzene exposure

was from liquid mixtures containing small amounts of benzene, that

the dermal contact prohibition was not based on the best available

evidence, and that the dermal contact prohibition was not feasible.

With respect to feasibility, the rubber industry contended that

the manufacture of tires was impossible without some dermal con-

tact with solvent containing trace amounts of benzene.

I3a

IV.

OSHA justifies the reduction of the permissible exposure

limit for benzene from 10 ppm to | ppm by coupling two

factual findings, which it contends are supported by sub-

stantial evidence in the record, with a regulatory. policy

Which OSTILA contends is required by its mandate to protect

workers, The factual findings are that benzene causes leu-

kena and that there presently exists no known safe level

for benzene exposure, The regulatory policy is to limit em

ployee exposure to carcinogens to the lowest feasible level.

The producer petitioners, in addition to attacking the

factual finding that no known safe level for benzene ex-

posure exists,” contend that OSITA has failed to meet a

burden which the Act imposes of determining that the

reduction of the permissible exposure limit from 10> ppm

tol ppmiis ‘reasonably necessary’’ to provide a safe work-

place. In support of the latter contention, these petitioners

point to this cireuit’s recent decision in Aqua Slide ‘N’ Dive

Corp Vv. Cousumer Product Safety Commission, 569 2d

831 (oth Cir. 1978), and assert that OSHA failed to assess

benefits expected to be achieved by the standard in light

of the expected costs of compliance, The petitioners argue

that by defining an “occupational safety and health stan-

dard” as one requiring conditions ** reasonably necessary’

to provide safe or healthful places of employment, 29 U.S.

CLA. §652(8), Congress recognized that safety and health

resources are not unlimited and required OSHA somewhere

in its decisionmaking process to (1) attempt to determine

the extent to which its standards will benefit workers, and

*’'This argument is based on the fact that all studies associating

benzene and leukemia involve high benzene concentration levels,

that a substantial body of the scientifie community subscribes to

the theory that safe threshold levels exist for exposure to carei-

nogens, and that empirical evidence shows that low-level exposure

to benzene does not cause leukemia,

l4a

(2) decide whether the projected benefits justify the costs

of compliance with the standard. Only if all standards are

subjected to such assessment, argue the petitioners, can

OSHA assure maximum benefit from the finite amount

industry can expend on safety and health and thus carry

out Congress’ overriding policy ‘‘to assure so far as pos-

sible every working man and woman in the Nation safe and

healthful working conditions.”’ 29 U.S.C.A. §651(b). Since

OSHA has not made a valid determination that reducing.

the permissible exposure level of benzene from 10 ppm to

1 ppm is reasonably necessary to protect workers from a

risk of leukemia, the producers ask us to set that part of

the standard aside.”

OSHA denies that the ‘reasonably necessary’’ language

imposes any substantive obligation on it in promulgating

standards. OSHA would distinguish Aqua Slide, which

dealt with the Consumer Product Safety Act, on the basis

that the ‘‘reasonably necessary’’ language in that Act

appeared as a part of the sections which dealt with the

agency’s process of setting standards, 15 U.S.C.A. §§ 2056

(a), 2058(c)(2(A), whereas the ‘‘reasonably necessary’’

counterpart in the act it administers appears only in the

section which defines the type of standard it may promul-

gate.

In authorizing the Consumer Product Safety Com-

mission to promulgate safety standards, Congress provided

that ‘‘[a]ny requirement of such a standard shall be rea-

sonably necessary to prevent or reduce an unreasonable

risk of injury associated with such product.’’? 15 U.S.C.A.

§ 2056(a). It also required the Consumer Product Safety

Commission to make a specific finding that its rules were

‘‘reasonably necessary to eliminate or reduce an unreason-

able risk of injury.’”? 15 U.S.C.A. § 2058(e)(2)(A). Rather

“1 As a corollary, they ask us to set aside all other provisions de-

signed to effectuate the 1 ppm permissible exposure limit.

la

than following this format, the Occupational Safety and

Health Act de‘ines the occupational safety and health stan-

dard it authorizes as one “which requires conditions, or

the adoption or use of one or more practices, means, meth-

ods, operations, or processes, reasonably necessary or ap-

propriate to provide safe or healthful employment and

places of employment.’* 29 U.S.C.A. §652(8). We decline

to construe the precisely similar requirements of these two

Acts differently or to read words out of the OSHA legisla-

tion. The Act imposes on OSHA the obligation to enact

only standards that are reasonably necessary or appro-

priate to provide safe or healthful workplaces. If a stan-

dard does not fit in this definition, it is not one that OSHA

is authorized to enact.

OSHA next argues that even if the conditions required

by occupational safety and health standards must be rea-

sonably necessary to provide sate or healthful places of

employment, the Act still imposes on OSHA no obligation

to undertake a cost-benefit analysis with respect to the

standards it promulgates. OSHA argues that 29 U.S.C.A

§ 655(b) (5) defines when conditions imposed by a standard

dealing with toxic materials are reasonably necessary. It

urges that the emphasis of that section on making of a

standard *‘which most adequately assures . . . that no

employee will suffer material impairment of health>.

[from] regular exposure . . . for the period of his working

life,’’ overcomes any requirement to make a cost-benefit

analysis. Nevertheless, OSHA contends that it did under-

take economic analyses of both costs and benefits associated

with the standard as required by Aqua Slide, and that after

assessing those analyses it promulgated the standard.

Although 29 U.S.C.A. § 655(b)(5) requires the goal

of attaining the highest dices of health and safety protee-

tion for the employee, it does not give OSHA the unbridled

diseretion to adopt standards designed to create absolutely

risk-free workplaces regardless of cost. To the contrar vy;

léa

that section requires standards to be feasible, and it con-

tains a number of pragmatic limitations in the form of

specific kinds of information OSHA must consider in enact-

ing standards dealing with toxic materials. Those include

‘‘the best available evidence,’’ ‘‘research, demonstrations,

experiments, and such other information as may be appro-

priate,’’ ‘‘the latest available scientific data in the field,”’

and ‘‘experience gained under this and other health and

safety laws.’’ Moreover, in standards dealing with toxic

materials, just as with all other occupational safety and

health standards, the conditions and other requirements

imposed by the standard must be ‘‘ reasonably necessary or

appropriate to provide safe or healthful employment and

places of employment.’’ 29 U.S.C.A. § 652(8).

Since the purpose of the Act to protect workers from

dangerous conditions of employment is parallel to the pur-

pose of the Consumer Product Safety Act to protect con-

sumers from dangerous products, we must be guided by

Aqua Slide in determining whether OSHA has met its

burden of showing that the benzene standard is reasonably

necessary to protect workers from a leukemia hazard.

There we said:

In evaluating the ‘‘ reasonable necessity’’ for a stan-

dard, the Commission has a duty to take a hard look,

not only at the nature and severity of the risk, but also

at the potential the standard has for reducing the se-

verity or frequency of the injury, and the effect the

standard would have on the utility, cost or availability

of the product.

569 F.2d at 844; see also D. D. Bean & Sous vy. Consumer

Product Safety Commission, 574 F.2d 643 (1st Cir. 1978).

Before it regulates, the agency must show that a hazard

exists and that its regulation will reduce the risk from the

hazard, for ‘‘no [occupational safety and health] standard

would be expected to impose added costs or inconvenience

... unless there is reasonable assurance that the frequency

l7a

or severity of injuries or illnesses will be reduced.’’ 569

F.2d at 839. More importantly for today’s ease, Aqua Slide

also requires the agency to assess the expected benefits in

light of the burdens to be imposed by the standard. Al-

though the agency does not have to conduct an elaborate

cost-benefit analysis, 569 F.2d at 840, it does have to deter-

mine whether the benefits expected from the standard bear

a reasonable relationship to the costs imposed by the stan-

dard. 569 F.2d at 842,

The only way to tell whether the relationship between

the henetits and costs of the benzene standard is reasonable

is to estimate the extent of the expected benefits and costs.

See 569 I".2d at 843. OSHA did this with respect to costs by

engaging a consulting firm to assess the expected compli-

ance costs and economic feasibility of the proposed stan-

dard, 43 Fed.Reg. 5934-39, Based on this study and other

evidence, OSITA estimated compliance costs for all affected

industries to be $187—205 million first year operating costs,

$266 million engineering control costs, and $34 million re-

curring annual costs.27 OSHA determined these costs to be

feasible since they would not threaten the financial welfare

of the affected firms or the general economy. However,

OSHA disclaimed any obligation to balance these costs

against expected benefits. 43 Fed.liog. 5940-41, Rather than

attempting to measure the extent to which the leukemia

hazard of benzene exposure would be reduced by lowering

the permissible exposure limit from 10 ppm to 1 ppm,

OSHA merely assumed that benefits from the reduction

‘may be appreciable.’ [t based this assumption on a find-

ing that benzene was unsafe at any level and its conclusion

*? Although the petitioners du not seriously challenge OSHA’s

estimate of costs in this suit, they refer to the promulgation of this

standard as a $1 billion decision.

Neither OSHA’s estimate nor the petitioners’ estimate takes

into account the effects of the amendment, which narrows the scope

of the standard.

18a

that exposures to lower levels of toxic inaterials would be

safer than exposure to higher levels.

OSHA’s fall-back position attempts to justify its stan-

dard as being reasonably necessary within the meaning of

Aqua Slide. It contends the standard promises appreciable

benefits ata cost which industry can absorb, This justifica-

tion is deficient in one crucial way: substantial evidence

does not support OSHA's conclusion that benefits are likely

to be appreciable. Without an estimate of benefits supported

by substantial evidence, OSHA is unable to justify a finding

that the benefits to be realized from the standard bear a

reasonable relationship to its one-half billion dollar price

tag.

OSHA’s assumption that the standard is likely to result

in benefits is not unsupported. The divided opinion in the

scientific community over the existence or not of safe thresh-

old levels of exposure to carcinogens provides substantial

evidence which would support the finding that exposure to

henzene at the present level of 10 ppm poses some leukemia

risk. The general agreement in the scientific community that

exposure to carcinogens at low levels is safer than exposure

at higher levels permits the further factual deduction that

reducing the permissible exposure limit from 10 ppm to 1

ppm will result in some benefit. This finding and deduction,

however, does not yield the conclusion that measurable

henefits will result, and OSHA is unable to point to any

studies or projections supporting such a finding. As we

noted in Aqua Slide, mere rationality is not equivalent to

substantial evidence that conditions required by standards

are reasonably necessary. 569 F.2d at 841. The lack of sub-

stantial evidence of discernible benefits is highlighted when

one considers that OSHA is unable to point to any empirical

evidence documenting a leukemia risk at 10 ppm even

though that has been the permissible exposure limit since

1971. OSHA’s assertion that benefits from reducing the

permissible exposure limit from 10 ppm to 1 ppm are likely

19a

to be appreciable, an assumption based only on inferences

drawn from studies involving much higher exposure levels

rather than on studies involving these levels or sound sta-

tistical projections from the high-level studies, does not

satisfy the reasonably necessary requirement limiting

OSHA’s action. Aqua Slide requires OSHA to estimate the

extent of expected benefits in order to determine whether

those benefits bear a reasonable relationship to the stan-

dard’s demonstrably high costs.

We are not persuaded by OSHA’s argument that this

standard should be upheld since the lack of knowledge con-

cerning the effects of exposure to benzene at low levels

makes an estimate of benefits expected from reducing the

permissible exposure level impossible.** The statute re-

quires all conditions imposed by a standard to be reasonably

necessary to provide safe or healthful employment, and it

requires decisions to be based on ‘‘the best available evi-

dence,’’ ‘‘research, demonstrations, experiments, and such

other information as may be appropriate,’’ ‘‘the latest

*8 Although OSHA asserts that risk quantification at low expo-

sure levels and therefore estimates of expected benefits from the

standard cannot presently be made, OSHA has provided us with a

Preliminary Report on Population Risk to Ambient Benzene Ex-

posures, recently released by the Environmental Protection Agency,

which attempts to extrapolate from the results of the Infante

study a determination of the risk of leukemia to the general popula-

tion at the exposure level of 1 part per billion. In addition, the

petitioners introduced at the rulemaking proceeding a preliminary

risk assessment for occupational exposure to benzene at 10 ppm and

1 ppm based on the studies at higher exposure levels relied on by

OSILA. Finally, OSHA’s economie consultant testified that it could

perform a cost-effectiveness analysis for the benzene standard; an

analysis which would have included some kind of risk quantifica-

tion, Although OSHA’s assertion that present knowledge is insuffi-

cient to construct a valid dose-response curve for benzene may be

correct, the record reflects that preliminary assessments are now

being made and that valid extrapolations will be possible as more

is known about the effects of past exposure at higher levels.

20a

scientific data in the field,’’ and ‘‘experience gained under

this and other health and safety laws.’’ By requiring the

consideration of such kinds of information, Congress pro-

vided that OSHA regulate on the basis of knowledge rather

than on the unknown. But see Society of Plastics Industry,

Inc. vy. OSHA, 509 F.2d 1301, 1308 (2d Cir. 1975). Until

OSHA can provide substantial evidence that the benefits

to be achieved by reducing the permissible exposure limit

from 10 ppm to 1 ppm bear a reasonable relationship to the

costs imposed by the reduction, it cannot show that the

standard is reasonably necessary to provide safe or health-

ful workplaces.

This does not mean that OSHA must wait until deaths

occur as a result of exposure at levels below 10 ppm before

it may validly promulgate a standard reducing the permis-

sible exposure limit. See Florida Peach Growers Assocta-

tion, Inc. v. United States Department of Labor, 489 F.2d

120 132 (Sth Cir. 1974). Nevertheless, OSHA must have

some factual basis for an estimate of expected benefits be-

fore it can determine that a one-half billion dollar standard

is reasonably necessary. For example, when studies of the

effects of human exposure to benzene at higher concentra-

tion levels in the past are sufficient to enable a dose-response

curve to be charted that can reasonably be projected to

the lower exposure levels, or when studies of the effects of

animal exposure to benzene* are sufficient to make projec-

—————"

“4A dose-response curve shows the re ‘tween different

exposure | hose ex-

ment of leukemia in animals exposed to benzene, those attempts#

the most part have been unsuccessful. Those studies do not even

establish that benzene exposure causes leukemia, much less the

degree of risk associated with various exposure levels. See 43 Fed.

Ree. 5930-31, 5932.

2la

tions of the risks involved with exposure at low levels, then

OSHA will be able to make rough but educated estimates of

the extent of benefits expected from reducing the permis-

sible exposure level from 10 ppm to 1 ppm. Until such esti-

mates are possible, OSHA does not have sufficient informa-

tion to determine that a standard such as the one under

review which it can only say might protect some worker

from a leukemia risk is reasonably necessary.

We will not attempt to reconcile our decision with the

‘ases from other circuits which uphold other standards,

regulating exposure to carcinogens. See Industrial Union

Department, APL-C1O vy. Hodgson, 162 U.S.App.D.C. 331,

499 F.2d 467 (1974) (asbestos dust standard); Society of

Plastics Industry, Inc. v. OSHA, 509 F.2d 1301 (2d Cir.

1975) (vinyl chloride standard); American Iron & Steel

Institute et al. v. OSHA, 577 F.2d 825, No. 76-2358 et al.

(3d Cir., filed March 28, 1978) (coke oven emission stan-

dard). Those opinions did not address what Congress meant

by requiring the conditions imposed by standards to be

reasonably necessary to provide safe or healthful places of

employment. In this circuit, under our Aqua Slide decision,

substantial evidence must support a finding that those con-

ditions are reasonably necessary, a showing that OSHA

has not made, In addition, those cases were decided on their

own records. Without critical analysis of what was estab-

lished in those proceedings, we hold in today’s case that

Congress intended for OSHA to regulate on the basis of

more knowledge and fewer assumptions than this record

reflects.

OSH A’s failure to provide an estimate of expected bene-

fits for reducing the permissi)le exposure limit, supported

by substantial evidence, makes it impossible to assess the

reasonableness of the relationship between expected costs

and henelits. This failure means that the required support

is lacking to show reasonable necessity for the standard

promulgated. Consequently, the reduction of the permissible

22a

exposure limit from LO ppm to 1 ppm and all other parts

of the standard geared to the 1 ppm level must be set aside.

V,

OSHA's prohibition of dermal contact with benzene ts

based on “OSHA's policy that, in dealing with a carcinogen,

all potential routes of exposure (7.¢., inhalation, ingestion,

and skin absorption) be limited to the extent feasible’? 43

Mod. Reg. 5948, OSELA, while acknowledging that the record

evidence on the effect of benzene on the skin is ‘Sextremely

limited’? and that the few studies in the area ‘fare not

definitive as te the extent of benzene that is absorbed

through the intact skin or as to the @@mparative rate of

absorption through damaged skin,’’) 43 Med. Reg, 5948-49,

nevertheless decided to prohibit dermal contact with liquids

containing benzene, In arriving at this decision OSTLA re

lied on animal studies and one human study suggesting

that benzene is absorbed through intact skin, on the assump

tion that benzene would more readily be absorbed through

damaged skin than undamaged skin, and on the belief that

substances containing benzene are readily absorbed through

the skin and act as vehicies for absorption of benzene.

OSHA now seeks in part to justify this prohibition as

an adjunet to the permissible exposure limit for airborne

concentrations of benzene and because of a concern for der-

matitis. To the extent that the dermal contact prohibition is

an adjunct of the permissible exposure limit, it would have

to be set aside along with the permissible exposure limit,

The concern for dermatitis, on the other hand, appears to

be a post hoe rationalization for the dermal contact prohibi-

tion since it was not a significant part of OSILA’s reasoning

process that led to this provision.** The requirements of

6 At one point in the statement of reasons for the benzene stand.

ard OSILA did state that ‘‘[o]ne purpose of the protective clothing

and equipment requirement is to protect employees from dermatitis

and burns.’’ 43 Bed. Reg. 5953. The reason for this standard as a

Bou

this standard were based on the possible leukemia hazard

associated with exposure to benzene, 43 Fed. Reg. 5918, 5948,

and our review must be of the reasoning process of the

ageney at the time it promulgated the standard based on the

record before it, Dry Color Manufacturers’ Association, Ine.

Vv. Department of Labor, 486 2d 98, 104 n8& (3d Cir. 1973).

The user petitioners contend that substantial evidence

and the best available evidence do not support a finding

that the dermal contact provisions are reasonably necessary

to provide safe or heaithful employment, and in addition

they contend that the dermal contact prohibition is not

feasible since it is impossible for certain industries to oper-

ate without some dermal contact with liquids containing

small amounts of benzene, Since the amendment to the stan

dard on dune 21, 1978, significantly affeets the feasibility

issue, we will not address that issue in this opinion. We

agree with the users, however, that OSHA has not shown

the dermal contact prohibition to be reasonably necessary

to protect workers from contracting benzene-related leu-

kemia since readily available evidence of the kind Congress

required OSILA to consider was neglected, The record there:

fore fails to support the finding that benzene és absorbed

through the skin, Since entry to the body by dermal contact

was not established, the record will not support a finding

whole, however, and the primary reason for the absolute prohibition

of dermal contact with benzene (to which the protective clothing

and equipment provision is tied), is to protect workers from a

suspected carcinogen, It is within the context of OSITA’s poliey

of reducing exposure to carcinogens to the lowest feasible level that

we must review the dermal contact prohibition.

Dermal diseases can pose significant hazards in the workplace,

and regulatory action following proceedings specifically focusing

on such hazards may be appropriate. OSHLA recently announced the

formation of a standards advisory committee on cutaneous hazards

“identify the occupational exposures in industry which pose a

hazard to the skin and/or the use of the skin as a portal of entry.’’

Is Med. Reg. 10,647-48 (1978).

to

JAa

that the prohibition of all dermal contact with benzene will

result in quantifiable benefits in terms of a reduced risk of

leukemia justifying the costs of the provision. Thus reason-

able necessity is lacking here too.

Studies of whether benzene is absorbed by the skin of

animals, conducted in the first half of this century, are re

ferred to in this record during the course of expert testi

mony and as background material in later studies ef wheth-

er benzene ean be absorbed by human skin. Though these

studies reached different conclusions, their relevance with

respect to the issue of absorption of benzene by human skin

has been questioned since there are important differences

between the permeability of the skins of animals and hu-

mans. The studies concluding that benzene penetrates skin

of certain animals have also been criticized since the possi-

bility of benzene inhalation was not excluded and since there

Wis no guarantee that the skin remained intact through the

course of the experiment.

Between 1946 and 1961, experiments were conducted to

determine whether human skin absorbed benzene. Although

the first several of these studies conducted in the late 1940's

and mid-1950's had negative results, one study published in

1961 found that some absorption had occurred and conelud-

ed that ‘‘the absorption of benzene threughout the skin

must not be neglected.’’ The record reveals problems in the

interpretation of all of these studies, however. In particular,

the 1961 study reporting positive results used a technique,

compressing benzene-soaked cotton against the skin with a

glass plate for prolonged periods, that ix recognized today

as an efficient way to drive molecules into the skin.

The oral testimony on the issue of skin absorption of

henzene is very limited. Representatives of the National

Institute of Occupational Safety and Health testified that

they were of the opinion that benzene can be absorbed

through the skin, and that absorption is more likely when

the skin is damaged or when the benzene is contained in a

2a

solvent which itself is absorbed, Except for a passing refer-

ence to what appears to be the 1961 positive study, these

witnesses did not attempt to support. their opinions by

reference to empirical data.

The one expert dermatologist who testified in depth on

the issue of skin absorption of benzene, Dr. Howard Mai-

bach of the University of California Medical Center, after

summarizing and discussing critically the studies that have

been conducted to date, concluded that ‘in 1977 it is ex.

tremely difficult, if not impossible, to balance all of the in-

formation that is available. Admittedly, the overwhelming

majority of the observations suggest that benzene does not

penetrate the skin. One observation suggests that it does.’

Dr. Maibach testified that he did not know whether benzene

is absorbed through the skin; that he did not know whether

benzene would be more readily absorbed through damaged

skin than intact skin, although the assumption, unsupported

by any data, is that it would be; and that he did not know

whether benzene would be absorbed more readily if it is in

another solvent.

Were this the extent of the reeord on the issue of skin

absorption, OSHA’s finding that dermal contact with ben-

zene poses a cancer risk could pass muster. When available

evidence of equivalent quality is conflicting, a finding in

accordance with one view or the other should be considered

to be supported by substantial evidence. See Universal

Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465,

99 L.Ed. 456 (1951). This reeord speaks further on the issue

of skin absorption, however, and in light of OSHA’s statu-

tory command this additional evidence removes the support

for OSHA’s actions.

Dr. Maibach, following his conclusion that the studies

conducted to date were not definitive on the issue of whether

human skin absorbed benzene, stated:

Today we have a much simpler and much more direet

way of answering this . . . because now radioactive

26a

benzene is available, and one simply would apply radio-

active benzene, some Carbon 14 benzene, to the skin of

the arm of an appropriate animal that has permeability

characteristics similar to the people in this room...

and then would simply look for the radioactivity ex-

creted into the urine, the feces and the breath.

This is a simple technique. It has been done for over

100 organie compounds in the last decade, measuring

the amount of transport to the skin, and it would then

tell us definitively, without argument, and efficiently,

just how much of any benzene penetrates the skin.

Dr. Maibach testified that this experimental technique can

answer a number of questions other than whether any ben-

zene penetrates the skin, including demonstrating any dif-

ferences in existence and extent of absorption of various

parts of the body which may be exposed; whether benzene

applied to the skin has the same toxie potential as benzene

inhaled; whether multiple exposures result in correspond-

ingly greater absorption than a single exposure; whether

it is possible for one to protect himself by wearing protee-

tive clothing; whether and to what extent the amount of

henzene absorbed through the skin is dependent upon ben-

zene concentration; whether, because of its volatility, ben-

zene splashed onto the skin evaporates more rapidly or goes

through the skin more rapidly; and whether benzene is

absorbed more readily if it is in another solvent. Dr. Mai-

hach testified that the experiment would be relatively short

term in length (six to twelve weeks), that the techniques

are straightforward and reliable, and that the experiment

could be done by anybody having the analytie facilities

available. This testimony about the availability and relia-

bility of modern experimental techniques is unrefuted in

the record.

OSHA’s decision to regulate on the basis of dated, incon-

elusive data when modern experimental methods can quickly

and efficiently provide reliable information contravenes the

directive from Congress to promulgate standards on the

basis of the ‘‘best available evidence,’’ ‘‘ research, demon-

27a

strations, experiments, and such other information as may

be appropriate,’’ and ‘‘the latest available scientific data in

the field.’ 29 U.S.CLA, §655(b) (5). This is not a case where

there is testimony that additional sophisticated research

could be attempted, but might not shed new light on a

subject. To the contrary, unrefuted testimony reveals the

existence of simple experimental techniques, tried and

proved effective for over 100 organie compounds, that ean

provide accurate information on the factual issues OSHA

admits are unresolved by the past studies.27 When such

factual information is so readily available, 29 U.S.CLA.

G50(0D)(5) requires OSHA to aequire that information

before promulgating regulations which would require an

established industry to change long-followed work processes

that are not demonstrably unsafe.

In light of unrefuted testimony on the ready availability

of conclusive evidence on the subject, OSHA’s choice to rely

on old and inconclusive evidence that there is a possibility

of absorption of benzene through the skin which might cause

cancer is in clear disregard of the congressional directive

as to the kinds of evidence OSHA is required to consider.

Therefore, the provision of the standard prohibiting dermal

contaet with liquid benzene cannot stand on the present

record,

VI.

The reduction of the permissible exposure limit and

the prohibition of dermal contact are the provisions of the

benzene standard to which all the standard’s other require

inents are tied. Since neither of these provisions can be

upheld on the present record, it follows that the standard

as a whole must be set aside.

Although we vacate the labeling provision in conjunction

with the rest of the standard, this or some similar require-

“7 Tn their brief the petitioners represent that Dr. Maibach is now

conducting one such study.

28a

inent is sure to be considered by OSHA on remand. There.

fore, we address the user petitioners’ jurisdictional attack

on one aspect of that provision. The labeling provision gen-

erally requires the employer to assure that caution labels

are aflixed to all containers of benzene and benzene-contain

ing products. In the aspect of the provision under attack,

OSHA further requires each employer to ‘tassure that the

caution labels remain affixed when the benzene or products

containing benzene are sold, distributed or otherwise leave

the employer’s workplace.’’

By requiring caution labels to remain affixed when ben-

zene products leave an employer’s workplace, OSHA. in-

tended to assure that all employees along the produet’s

distribution chain are apprised of the hazardous nature of

benzene exposure. 43 Fed.Reg. 5960. It relied on the au-

thority given to it by 29 U.S.CLA. §655(b)(7) to require

the use of warning labels in standards, and it coneluded

that this authority was not limited to requiring an employer

to warn his own employees of the hazardous products he

manufactures. Since the manufacturer of a product contain-

ing a toxic substance (and subsequent employers who have

heen informed of the hazard) is in the best position to know

of the hazard and warn others down the distribution chain,

OSHA concluded that the protective purposes of the Aet

would best be served by requiring the manufacturers to

refrain from taking steps designed to withhold information

concerning the dangers of the products from downstream

workers.

The petitioners contend that the Act gives OSHA the

jurisdiction to regulate workplaces, not products. They ar-

gue that OSHA here is claiming the authority to regulate

finished products leaving the workplace, an authority that

would transform what was intended to be a federal work-

place safety code into a federal product safety code. The

petitioners contend that Congress intended to place the

responsibility for proteeting each employee on his or her

etna ae ae A Ne

29a

own employer, an allocation of responsibility that has

proved workable in all but unusual circumstances such as

the multiemployer construction worksite; and that, since

all employers would be required to assure that benzene-

containing products in their own workplaces are labeled,

and the usual allocation of responsibility for labeling would

be workable and effective.

Cases involving multiemployer construction worksites

have recognized a duty on an employer to comply with

OSHA standards in order to protect the employees of an-

other employer. See Brennan vy. Occupational Safety &

Health Review Commission and Underhill Construction

Corp., 013 F.2d 1082 (2d Cir. 1975) (Underhill): Marshall v.

Knutson Construction Co., 566 F.2d 596 (8th Cir. 1977);

Beatty Equipment Leasing, Inc. v. Secretary of Labor, 577

B.2d 534 (9th Cir. 1978). These cases involved citations for

violations of 29 U.S.CLA, § 654(a), which imposes two duties

on employers:

Mach employer—

(1) shall furnish to each of his employees employment

and a place of employment which are free from recog-

nized hazards that are causing or are likely to cause

death or serious physical harm to his employees;

(2) shall comply with occupational safety and health

standards promulgated under this chapter.

In holding that the § 654(a)(2) duty could be violated even

though the cited employer’s employees were not shown to

have been exposed to the hazard created by the violation,

the Underhill court emphasized that the §654(a)(2) duty,

unlike the §654(a)(1) duty, was ‘fin no way limited to situ-

ations where a violation of a standard is linked to exposure

of his employees to the hazard.’’ 513 F.2d at 1038 (emphasis

in original). In reaching its conclusion, the court relied on

the broad remedial purpose of the Act and on the fact that

the cited employer had created the hazard and maintained

30a

the area where it was located. In agreeing with this analysis,

the Beatty court stated:

[This interpretation of the statute] facilitates the

broad remedial purpose of the Act which Congress

declared is ‘‘to assure so far as possible every working

man and woman in the Nation safe and healthful work-

ing conditions.’’ 29 U.S.C.A. § 651, As this court has

stated, ‘‘Congress clearly intended to require employ-

ers to eliminate all foreseeable and preventable haz-

ards.’’ [citation omitted] We agree with the Commis-

sion that this policy can best be effectuated by placing

the responsibility for hazards on those who create them.

577 F.2d at 537. The duty on one employer to comply with

OSHA standards for the benefit of employees of another

employer, however, has only been expressly recognized in

the multiemployer construction worksite context.

In deciding whether an OSHA standard can require an

employer to assure that a warning label remains affixed

when a benzene-containing product leaves his workplace in

order to protect downstream employees, we too must keep

in mind the Act’s overall purpose ‘‘to assure so far as

possible every working man and woman in the Nation safe

and healthful working conditions.’’ 29 U.S.C.A. §651(b).

In this light the provision of the statute requiring OSHA to

prescribe labeling of hazards is broad in scope:

Any standard promulgated under this subsection

shall prescribe the use of labels or other appropriate

forms of warning as are necessary to insure that em-

ployees are apprised of all hazards to which they are

exposed...

29 U.S.C.A. § 655(b)(7). Unlike some sections of the Act,

this provision does not expressly limit the employer’s obli-

gation of informing employees of hazardous conditions to

the employer’s own employees.

The ability of downstream employers to protect their

own employees is also an appropriate consideration in de-

sla

termining where the duty to warn should lie. Cf. Anning-

Johnson Co, v. Occupational Safety and Health Review

Commission, 516 I*.2d 1081, 1086-91 (7th Cir. 1975). This

record reveals that the presence of benzene in a workplace

is often a hidden hazard. Some industries refer to benzene

under code or trade names, and many products containing

benzene are sold only under trade names with no listing of

contents. Under such circumstances it is apparent that the

manufacturer of a benzene-containing product is in a far

better position to warn downstream employees in opera-

tions using the benzene-containing product of the benzene

hazard than is a downstream employer.

Considering the purpose of the Act to protect every work-

ing person in the nation, the express and broad statutory

authorization for OSHA to prescribe warning labels in

standards, and the fact that the presence of benzene in a

product is often a concealed hazard, we agree with OSHA

that it has the authority to prohibit an employer from re-

moving the warning labels from containers of benzene and

benzene products when those containers leave his workplace.

This is not a situation where OSHA is imposing a heavy

regulatory burden on an employer solely for the benefit of

the employees of another. Rather, the regulation says no

more than that an upstream employer may not take affirma-

tive steps to withdraw from downstream employees a pro-

tection that he must furnish to his own employees. The

obvious reluctance of the maker of a product to intimate

or suggest to his consumers that his product is less than

totally desirable is understandable. Such a consideration

may even be shown to have such deleterious effect on sales

that it affects the reasonable necessity for this feature of

the regulation. See Aqua Slide, 569 F.2d at 840-48. In such

a case, OSHA may choose to eliminate the requirement

altogether. It may also choose to moderate the label’s de-

scription to more precisely describe the nature or extent of

the hazard.

oe

Don

Placing the responsibility to warn downstream employees

of concealed hazards on those upstream employers who

create the hazards and know of the hazards is consistent

with the remedial purpose of the Act and is within OSHA’s

broad authority to prescribe warning labels. If on remand

OSHA decides to promulgate a new benzene standard which

includes warning labels, OSHA may require an employer

in the chain of distribution of those products to assure that

such warning labels remain affixed when the product leaves

the employer’s workplace. provided, of course, the labeling

requirement as a whole is shown to be reasonably necessary

to provide safe workplaces.

The user petitioners also contend that OSHA’s authority

to require labeling of products containing benzene has been

preempted under 29 U.S.C.A. § 653(b)(1)* by the Con-

sumer Product Safety Commission, which has promulgated

regulations under the Federal Hazardous Substances Act,

15 U.S.C.A. § 1261 et seq.,”” requiring the labeling of prod-

ucts containing benzene. See 16 C.F.R. § 1500.14(a) (3), (b)

(3) (1977). We reject this argument. The preemption provi-

sion was intended to avoid the ‘‘duplication that would re-

sult where another federal agency was also providing for

the occupational safety of a class of workers.’’ Organized

Migrants in Community Action, Inc. v. Brennan, 172 U.S.

App.D.C. 147, 153, 520 F.2d 1161, 1167 (1975). It applies

only when the preempting regulation is ‘‘directed at a work-

ing condition,’’ Southern Pacific Transportation Co. v.

Usery, 539 F.2d 386, 391 (Sth Cir. 1976), which the promul-

2829 U.S.C.A. § 653)b) (1) states:

Nothing in this chapter shall apply to working conditions of

employees with respect to which other Federal agencies . . .

exercise statutory authority to prescribe or enforce standards

or regulations affecting occupational safety or health.

29 The Consumer Product Safety Commission has authority to

promulgate regulations under the Federal Hazardous Substances

Act by virtue of 15 U.S.C.A. § 2079.

30a

gating agency has authority to regulate. The Consumer

Product Safety Commission’s regulation is not designed to

protect a class of workers and it is not directed at the

working conditions of employees, Although an existing re-

quirement for labeling under another act may affect the

reasonable necessity for an OSHA requirement, 29 U.S.C.A.

§653(b)(1) does not prohibit OSHA from requiring con-

tainers of benzene products to bear the warning labels au-

thorized by 29 U.S.C.A. § 655(b) (7).

Conclusion

The petitions for review are granted. The reduction of the

airborne permissible exposure limit from 10 ppm to 1 ppm

is set aside since the present record does not show that such

a reduction is reasonably necessary to provide safe or

healthful employment. The dermal contact prohibition is set

aside since this provision was not based on the best avail-

able scientific data in the field. The remaining provisions of

the standard are also vacated since they are ancillary to the

permissible exposure limit reduction and the dermal contact

prohibition.

dda

APPENDIX B

Part 1910 of Title 29 of the Code of Federal Regulations

is hereby amended as follows:

1. A new paragraph (c) is added to § 1910.19, to read as

follows:

§ 1910.19 Special provisions for air contammants.

(c) Section 1910.1028 shall apply to the exposure of every

employee to benezene in every employment and place of

employment covered by §§ 1910.12, 1910.13, 1910.14, 1910.15,

or § 1910.16, in lieu of any different standard on exposure

to benzene which would otherwise be applicable by virtue

of any of those sections.

§ 1910.20 [Revoked]

2. Section 1910.20 is revoked.

§ 1910.1000 [Amended]

3. Table Z-2 of §1910.1000 is amended by adding a foot-

note following the words ‘‘ Benzene (Z37.40-1969),’’ and by

adding the following below Table Z-2:

4. Section 1910.1028 is revised to read as follows:

§ 1910.1028 Benzene.

(a) Scope and application. (1) This section applies to

each place of employment where benzene is produced, re-

acted, released, packaged, repackaged, stored, transported,

handled, or used.

(2) This section does not apply to:

(i) The storage, transportation, distribution, dispensing,

sale or use as fuel of gasoline, motor fuels, or other fuels

subsequent to discharge from bulk terminals; or

' Occupational exposures to benzene are subject to the require-

ments of § 1910.1028 except as specifically exempted by § 1910.-

1028(a) (2). Exposures exempted by § 1910.1028(a)(2) are cov-

ered by this § 1910.1000.

ONT ast SI

35a

(ii) The storage, transportation, distribution or sale of

benzene in intact containers sealed in such a manner as to

contain benzene vapors or liquid, except for the require-

ments of paragraph (k) (2), (3), (4), and (5), and para-

graph (j) of this section.

(b) Definitions. ** Action level’? means an airborne con-

centration of benzene of 0.5 ppm, averaged over an 8-hour

work day.

‘Assistant Secretary’? means the Assistant Secretary

of Labor for Occupational Safety and Health, U.S. Depart-

ment of Labor, or designee.

‘“‘Authorized person’’ means any person required by his

duties to enter a regulated area and authorized to do so by

his employer, by this section or by the Occupational Safety

and Health Act of 1970. ‘‘Authorized person’”’ includes a

representative of employees who is designated to observe

monitoring and measuring procedures under paragraph

(m) of this section. :

‘“‘Benzene”’ (Cells) (CAS Registry No. 00071432) means

solid, liquefied or gaseous benzene. [t includes mixtures of

~ tds.containing benzene and the vapors released by these

liquids.

~~,

‘‘Bulk terminal’? means a facility which is used for the

storage and distrbution of gasoline, motor fuels or other

fuels and which receives its petroleum products by pipeline,

barge or marine tanker.

‘*Director’’ means the Director of the National Institute

for Occupational Safety and Health, U.S. Department of

Health, Mducation, and Welfare, or designee.

‘‘Mmergency’’ means any occurrence such as, but not

limited to, equipment failure, rupture of containers, or fail-

ure of control equipment which may, or does, result in a

massive release of benzene,

36a

‘‘OSHA Area Office’ means the office of the Occupational

Safety and Health Administration having jurisdiction over

the geographic area where the affected workplace is located.

(ec) Permissible exposure limits—(1)Inhalation—(i)

Time-weighted average limit (TWA). The employer shall

assure that no employee is exposed to an airborne concen-

tration of benzene in excess of 1 part benzene per million

parts of air (1 ppm) as an 8-hour time-weighted average.

(ii) Ceiling limit, The employer shall assure that no

employee is exposed to an airborne concentration of ben-

zene in excess of 5 ppm as averaged over any 15 minute

period.

(2) Dermal and eye exposure limil. The employer shall

assure that no employee is exposed to eye contact with

liquid benzene; or to skin contact with liquid benzene, unless

the employer can establish that the skin contact is an iso-

lated instance.

(d) Regulated areas. (1) the employer shall establish,

within each place of employment, regulated areas where

benzene concentrations are in excess of the permissible air-

borne exposure limit.

(2) The employer shall limit access to regulated areas to

authorized persons.

(3) Notification of regulated areas. Within 30 days fol-

lowing the establishment of a regulated area, the employer

shall report the following information to the OSHA Area

Office :

(i) The address of each establishment which has one or

more regulated areas ;

(ii) The loeations, within the establishment, of each regu-

lated area;

(iii) A brief description of each process or operation

which results in employee exposure to benzene in regulated

areas; and

37a

(iv) The number of employees engaged in each process or

operation within each regulated area which results in ex-

posure to benzene, and an estimate of the frequency and

degree of exposure within each regulated area.

(e) Exposure monitoring and measurements.—(1) Gen-

eral. (i) Determinations of airborne exposure levels shall

he made from air samples that are representative of each

employee’s exposure to benzene over an eight (8) hour

period.

(1i) For the purposes of this section, employee exposure

is that exposure which could oceur if the employee were not

using a respirator.

(2) Initial monitoring. (i) Hach employer, whe has a place

of employment where benzene is produced, reacted, re-

leased, packaged, repackaged, stored, transported, handled

or used shall monitor each of these workplaces and work

operations to accurately determine the airborne concentra-

tions of benzene to which employees may be exposed.

(ii) The initial monitoring required under paragraph

(e)(2)(i) of this section shall be conducted and the results

obtained within 30 days of the effective date of this section.

Where the employer has monitored after January 4, 1977

and the monitoring satisfies the accuracy requirements of

paragraph (e)(6) of the section, the employer may rely on

such earlier monitoring to satisfy the requirements of para-

graph (e)(2) (i) of this section, unless there has been a pro-

duction, process, personnel or control change which may

have resulted in new or additional exposures to benzene or

the employer has any other reason to suspect a change

which may have resulted in new or additional exposures to

benzene; and provided that the employer maintains a record

of the monitoring in accordance with paragraph (1) (1) and

notifies each employee in accordance with paragraph (e) (5).

(3) Irequency.—(i) Measurements below the action level.

If the measurements conducted under paragraph (e) (2) (i)

38a

of this section reveal employee exposure to be below the

action level, the measurements need not be repeated, except

as otherwise provided in paragraph (e) (+4) of this section.

(ii) Measurements above the action level. If the measure-

ments reveal employee exposure to be in excess of the

action level, but below the permissible exposure limit, the

employer shall repeat the monitoring at least quarterly.

The employer shall continue these quarterly measurements

until at least two consecutive measurements, taken at least

seven (7) days apart, are below the action level, and there-

after the employer may discontinue monitoring, except as

provided in paragraph (e)(4) of this section.

(iii) Measurements above the permissible exposure limit.

If the measurements reveal employee exposure to be in

excess of the permissible exposure limits, the employer shall

repeat the measurements at least monthly. The employer

shall continue these monthly measurements until at least

two consecutive measurements, taken at least seven (7)

days apart, are below the permissible exposure limits, and

thereafter the employer shall monitor at least quarterly.

(4) Additional monitoring. Whenever there has been a

production, process, personnel or control change which may

result in new or additional exposure to benzene or whenever

the employer has any other reason to suspect a change

which may result in new or additional exposures to benzene,

such as spills, leaks, ruptures, or breakdowns, the employer

shall repeat the monitoring which is required by paragraph

(e)(2)(i) of this section.

(5) Employee notification. (i) Within 5 working days

after the receipt of the measurement results, the employer

shall notify each employee in writing of the exposure meas-

urements which represent that employee’s exposures.

(ii) Where the results indicate that the employee’s ex-

posure exceeds the permissible exposure limits, the notifi-

ee

39a

‘ation shall also include the corrective action being taken

or to be taken by the employer to reduce exposure to or

below the permissible exposure limit.

(6) Accuracy of measurement. The employer shall use a

method of measurement which has an accuracy, to a confi-

dence level of 95 percent, of not less than plus or minus 25

percent for concentrations of benzene greater than or equal

to 1 ppm.

(f) Methods of compliance—(1) Priority of compliance

methods, The employer shall institute engineering and work

practice controls to reduce and maintain employee expo-

sures to benzene at or below the permissible exposure limits,

except to the extent that the employer establishes that these

controls are not feasible. Where feasible engineering and

work practice controls are not sufficient to reduce employee

exposure to or below the permissible exposure limits, the

employer shall nonetheless use them to reduce exposures to

the lowest level achievable by these controls, and shall sup-

plement them by the use of respiratory protection.

(2) Compliance program. (i) The employer shall estab-

lish and implement a written program to reduce exposures

to or below the permissible exposure limits solely by means

of engineering and work practice controls required by para-

graph (f)(1) of this section.

(ii) The written program shall include a schedule for de-

velopment and implementation of the engineering and work

practice controls. These plans shall be revised at least every

six months to reflect the current status of the program.

(iii) Written plans for th+se compliance programs shall

be submitted, upon request, to the Assistant Secretary and

the Director, and shall be available at the worksite for ex-

amination and copying by the Assistant Secretary, the Di-

rector, and the employees or their authorized representa-

tives.

40a

(iv) The employer shall institute and maintain at least

the controls described in his most recent written compliance

program,

(g) Respiratory protection—(1) General. Where res-

piratory protection is required under this section, the em-

ployer shall select, provide and assure the use of respira-

tors. Respirators shall be used in the following cireum-

stances:

(i) During the time period necessary to install or imple-

ment feasible engineering and work practice controls;

(ii) During maintenance and repair activities in which

enginering and work practice controls are not feasible ;

(iii) In work situations where feasible engineering and

work practice controls are not vet sufficient to reduce ex-

posure to or below the permissible exposure limits; or

(iv) In emergencies.

(2) Respirator selection. (i) Where respiratory protec-

tion is required under this section, the employer shall select

and provide, at no cost to the employee, the appropriate

respirator from Table 1 below and shall assure that the

employee uses the respirator provided.

(ii) The employer shall select respirators from among

those approved by the National Institute for Occupational

Safety and Health under the program of 30 CFR Part 11.

(3) Respirator program. The employer shall institute a

respiratory protection program in a accordance with

§ 1910.134(b), (d), (e) and (f).

(4) Respirator use. (i) Where air purifying respirators

(cartridge, canister, or gas mask) are used, the employer

shall, except as provided in paragraph (g)(4) (ii) of this

section, replace the air-purifying canisters or cartridges

prior to the expiration of their service life or the end of

shift in which they are first used, whichever occurs first.

4la

(ii) Where a cartridge or canister of an air purifying

respirator has an end of service life indicator certified by

NIOSH for benzene, the employer may permit its use. until

such time as the indicator shows the end of service life.

(iii) The employer shall assure that the respirator issued

to the employee exhibits minimum facepiece leakage and

that the respirator is properly fitted,

(iv) The employer shall allow each employee who wears

a respirator to wash his or her face and respirator facepiece

to prevent skin irritation association with respirator use.

Tasie l.—Respiratory protection for benzene

Airborne concentration of

benzene or condition of

use

Respirator type

_(@) Less thanorequalto (2) Any chemical cartridge res-

10 p/m. pirator with organic vapor

cartridge; or

(2) Any supplied air respi-

rator.

(b) Less thanorequalto (2) Any chemical cartridge res-

50 p/m. | pirator with organie vapor

cartridge and full face-

piece ;

(2) Any supplied air respirator

with full facepiece ;

(3) Any organic vapor gas

mask ; or

(4) Any self-contained breath-

ing apparatus with full

facepiece.

(c) Lessthanorequalto (2) Supplied air respirator

1,000 p/m. with half mask in positive

pressure mode.

42a

(d) Lessthanorequalto (2) Supplied air respirator

2,000 p/m. with full facepiece, helmet,

or hood, in positive pres-

sure mode.

(e) Lessthanorequalto (1) Supplied air respirator and

10,000 p/m. auxiliary self-contained

facepiece in positive pres-

sure mode; or

(2) Open circuit self-contained

breathing apparatus with

full facepiece in positive

pressure mode.

i Brera (1) Any organic vapor gas

mask ; or

(2) Any self-contained breath-

ing apparatus with full

facepiece.

(h) Protective clothing and equipment. Where eye or

dermal exposure may occur, the employer shall provide, at

no cost to the employee, and assure that the employee wears

impermeable protective clothing and equipment to protect

the area of the body which may come in contact with liquid

benzene. Hye and face protection shall meet the require-

ments of § 1910.133 of this Part.

(i) Medical Surveillance—(1) General. (i) The employer

shall make available a medical surveillance program for

employes who are or may be exposed to benzene at or above

the action level and employees who are subjected to an

emergency. ”

(ii) The employer shall assure that all medical examina-

tions and procedures are performed by or under the super-

vision of a licensed physician, and provided without cost

to the employee.

(2) Initial examinations. (1) Within thirty days of the

effective date of this section, or before the time of initial

assignment, the employer shall provide each employee who

4 oa

is or may be exposed to benzene at or above the action level

with a medical examination, including at least the following

elements;

(a) A history which includes past work exposure to ben-

zene or any other hematologic toxins; a family history of

blood dyscrasias including hematological neoplasms; a his-

tory of blood dyserasias including genetically related heimo-

globin alterations, bleeding abnormalities, abnormal fune-

tion of formed blood elements; a history of renal or liver

dysfunction; a history of drugs routinely taken, alcoholic

intake and systemic infections; a history of exposure to

marrow toxins outside of the current work situation, in-

cluding volatile cleaning agents and insecticides;

(b) Laboratory tests, including a complete blood count

with red cell count, white cell count with differential,

platelet count, hematocrit, hemoglobin and red cell indices

(MCV, MCH, MCHC), serum bilirubin and reticulocyte

count; and

(c) Additional tests where, in the opinion of the examin-

ing physician, alterations in the components of the blood

are related to benzene exposure.

(ii) No medical examination is required to satisfy the

requirements of paragraph (i)(2)(i) of this section if ade-

quate records show that the employee has been examined in

accordance with the procedures of paragraph (i)(2)(i) of

this section within the previous six months.

(3) Information provided to the physician. The employer

shall provide the following information to the examining

physician for each examination under this section:

(1) A copy of this regulation and its appendixes ;

(ii) A description of the affected employee’s duties as

they relate to the employee’s exposure; —

(iii) The employee’s representative exposure level or an-

ticipated exposure level;

44a

(iv) A description of any personal protective equipment

used or to be used; and

(v) Information from previous medical examinations of

the affected employee which is not readily available to the

examining physician.

(4) Physician's written opinions. (i) For each examina-

tion under this section, the employer shall obtain and pro-

vide the employee with a copy of the examining physician’s

written opinion containing the following:

(a) The results of the medical examination and tests;

(b) The physician's opinion concerning whether the em-

plovee has any detected medical conditions which would

place the employee's health at increased visk of material im-

pairment from exposure to benzene:

(c) The physician's recommended limitations upon the

employee’s exposure to benzene or upon the employee's use

of protective clothing or equipment and respirators.

(ii) The written opinion obtained by the employer shall

not reveal specific findings or diagnoses unrelated to occu-

pational exposures.

(5) Periodic examinations (i) The employer shall pro-

vide each employee covered under paragraph (i)(1)(1) of

this section with a medical examination at least semi-

annually following the initial examination. These periodic

examinations shall include at least the following elements:

(a) A brief history regarding any new exposure to poten-

tial marrow toxins, changes in drug and alcohol intake and

the appearance of physical symptoms relating to blood

disorders ;

(b) A complete blood count with red cell count, white

cell count with differential, platelet count, hemoglobin,

hematocrit and red cell indices (MAICV, MCH, MCHC); and

a

ee

45a

(c) Additional tests where in the opinion of the examin-

ing physician, alterations in the components of the blood

are related to benzene exposure.

(ii) Where the employee develops signs and symptoms

commonly associated with toxie exposure to benzene, the

employer shall provide the einplovee with a medical exami-

nation which shall include those elements considered ap-

propriate by the examining physician.

(6) Emergency situations. If the employee is exposed to

henzene in an emergency situation, the employer shall pro-

vide the employee with a urinary phenol test at the end of

the employee's shift. The urine specific gravity shall he

corrected to 1.024. If the result of the urinary phenol test

is below 75 mg/ml, no further testing is required. If the

result of the urinary phenol test is equal to or greater than

7) mg/ml, the employer shall provide the employee with a

complete blood count including a red cell count, white cell

count with differential, and platelet count as soon as prac-

ticable, and shall provide these same counts one month later.

(7) Special examinations. (i) Where the results of any

tests required by this section reveal that any of the follow-

ing conditions exist, the employer shall have the test results

of the employee evaluated by a hematologist:

(a) The red cell count, hemoglobin or platelet count

varies more than 15 percent above or below the employee’s

most recent values ;

(b) The red cell count is below 4.4 million or above 6.3

million per min*, (for males), or below 4.2 million or above

5.5 million per mm® (for females) ;

(c) The hemoglobin is below 14 grams percent or above

18 grams percent (for males) or below 12 grams percent

or above 16 grams percent (for females) ;

(7) The white cell count is below 4,200 or above 10,000;

(46a

’

(e) The thrombocyte count is below 140x10° cells per mm*

or above 440x10° cells per mnt

(ii) In addition to the information required to be pro-

vided to the physician under paragraph (i)(3) of this see-

tion, the employer shall provide the hematologist with the

medical record required to be maintained by paragraph

(1)(2) of this section.

(iii). The hematologist’s evaluation shall inelude a deter-

mination as to the need for additional tests, and the em-

ployer shall assure that these tests are provided.

(j) Employee information and training—(1) Training

program, (i) The employer shall institute a training pro-

gram for all employees assigned to workplaces where ben-

zene is produced, reacted, released, packaged, repackaged,

stored, transported, handled or uged and shall assure that

each employee assigned to these workplaces is informed of

the following: ;

(a) The information contained in Appendices A and B

of this section; |

(b) The quantity, location, manner of use, release, or

storage of benzene and the specific nature of operations

which could result in exposure above the permissible ex-

posure limits as well as necessary protective steps;

(c) The purpose, proper use, and limitations of personal

protective equipment and clothing required by paragraph

(h) of this section and of respiratory devices required by

paragraph (g) of this section and § 1910.134(b), (d), (e)

and (f);

(d) The purpose and a description of the medical sur-

veillance program required by paragraph (i) of this section

and the information contained in Appendix C of this see-

tion; and

(ce) The contents of this standard.

i

A OT ai

47a

(ii) The training program required under paragraph

(j)(1) (i) of this section shall be provided within 90 days

of the effective date of this section or at the time of initial

assignment to workplaces where benzene is produced, re-

acted, released, packaged, repackaged, stored, transported,

handled or used, and at least annually thereafter.

(2) Access to training materials. (i) The employer shall

make a copy of this standard and its Appendices readily

available to all affected employees.

(ii) The employer shall provide, upon request, all ma-

terials relating to the employee information and training

program to the Assistant Secretary and the Director.

(k) Segns and labels. (1) The employer shall post signs

in regulated areas bearing the following legend:

DANGER

BENZENE

CANCER HAZARD

FLAMMABLE—NO SMOKING

AUTHORIZED PERSONNEL ONLY

RESPIRATOR REQUIRED

(2) The employer shall assure that caution labels are

affixed to all containers of benzene and of products con-

taining any amount of benzene, except:

(i) Pipelines, and

(ii) Transport vessels or vehicles carrying benzene or

benzene products in sealed intact containers.

(3) The employer shall assure that the caution labels

remain affixed when the benzene or products containing ben-

zene are sold, distributed or otherwise leave the employer’s

workplace.

48a

(4) The caution labels required by paragraph (k)(2) of

this section shall be readily visible and legible. The labels

shall bear the following legend:

CAUTION

CONTAINS BENZENE

CANCER HAZARD

(5) The employer shall assure that no statement which

contradicts or detracts from the information reavired bv

paragraphs (k)(1) and (kj(4) of this section appears on

or near any required sign or label.

(1) Recordkeeping —(1) Exposure measurements. (i) The

employer shall establish and maintain an accurate record

of all measurements required by paragraph (e) of this

section,

(ii) This record shall include:

(a) The dates, number, duration, and results of each of

the samples taken, including a description of the procedure

used to determine representative employee exposures;

(b) A description of the sampling and analytical meth-

ods used ;

(c) Type of respiratory protective devices worn, if any;

and

(d) Name, social security number, and job classification

of the employee monitored and all other employees whose

exposure the measurement is intended to represent.

(iii) The employer shall maintain this record for at least

40 years or the duration of employment plus 20 years,

whichever is longer.

(2) Medical surveillance. (i) The employer shall establish

and maintain an accurate record for each employee subject

eon

ee eee

49a

to medical surveillance required by paragraph (i) of this

section.

(ii) This record shall include:

(a) The name, and social security number of the em-

ployee;

(b) .\ copy of the physicians’ written opinions, including

results of medical examinations and all tests, opinions and

recommendations ;

ted The peripheral Velewel Stuer slides of the initial test,

the most recent test, and any test demonstrating hemato-

logical abnormalities related to benzene exposure;

(d) Any employee medical complaints related to exposure

to benzene;

(ec) A copy of this standard and its appendices, except

that the employer may keep one copy of the standard and

its appendices for all employees provided that he references

the standard and its appendices in the medical surveillance

record of each employee;

(/) A copy of the information provided to the physician

as required by paragraphs (i)(3) (ii) through (i)(3)(v) of

this section; and

(g) A copy of the employee’s medical and work history

related to exposure to benzene or any other hematologic

toxins.

(iii) The employer shall maintain this record for at least

+0 years or for the duration of employment plus 20 years,

whichever is longer.

(3) Availability. (i) The employer shall assure that all

records required to be maintained by this section shall be

made available upon request to the Assistant Secretary and

the Director for examination and copying.

50a

(ii) The employer shall assure that employee exposure

meusurement records as required by this section be made

available for examination and copying to affected employ-

ees or their designated representatives.

(iii) The employer shall assure that former employees

and the former employees’ designated representatives have

access to such records as will indicate the former employee’s

own exposure to benzene.

(iv) The employer shall assure that employee medical

records required to be maintained by this section be made

available upon request for examination and copying to a

physician or other individual designated by the affected

employee or former employee.

(4) Transfer of records. (i) When the employer ceases

to do business, the successor employer shall receive and

retain all records required to be maintained by paragraph

(1) of this section for the prescribed period.

(ii) When the employer ceases to do business and there

is no successor employer to receive and retain the records

for the prescribed period, the employer shall transmit these

records by mail to the Director.

(iii) At the expiration of the retention period for the

records required to be maintained under paragraph (1) of

this section, the employer shall transmit these records by

mail to the Director.

(m) Observation of monitoring.—(1) Employee observa-

tion. The employer shall provide affected employees, or

their designated representatives, an opportunity to observe

any measuring or monitoring of employee exposure to ben-

zene conducted pursuant to paragraph (e) of this section.

(2) Observation procedures. (i) When observation of the

measuring or monitoring of employee exposure to benzene

requires entry into areas where the use of protective cloth-

ing and equipment or respirators is required, the employer

fo

Pah ITU

o

Dla

shall provide the observer with personal protective clothing

and equipment or respirators required to be worn by em-

ployees working in the area, assure the use of such clothing

and equipment or respirators, and require the observer to

comply with all other applicable safety and health proce-

dures.

(ii) Without interfering with the measurement, observers

shall be entitled to:

(a) Receive an explanation of the measurement proce-

dures;

(b) Observe all steps related to the measurement of air-

borne concentrations of benzene performed at the place of

exposure; and

(c) Record the results obtained.

(n) Appendices. The information contained in the appen-

dices is not intended, by itself, to create any additional obli-

gations not otherwise imposed or to detract from any

existing obligations.

APPENDIX A_

SuBsTANCE Sarety Data SHEET. RENZENE

I. SUBSTANCE IDENTIFICATION

A. Substance. Benzene.

B. Permissible Exposure: Except as to the use as fuels of

gasoline, motor fuels and other fuels subsequent to dis-

charge from bulk terminals.

1. Airborne. 1 part of benzene vapor per million parts of

air (1 ppm); time-weighted average (TWA) for an 8-hour

workday for a 40-hour week, with a 15 minute ceiling con-

centration of 5 ppm.

2. Dermal. Eye contact and skin contact ‘with liquid ben-

zene shall be prohibited.

j2a

C. Appearance and odor, Benzene is a clear, colorless

liquid with a pleasant, sweet odor. The odor of benzene does

not provide adequate warning of its hazard.

II, REALTH HAZARD DATA

A. Ways in which the benzene affects your health, Ben-

zene can affect your health if you inhale it, or if it comes in

contact with your skin or eyes. Benzene is also harmful if

you happen to swallow it.

B. Effects of overerposure. 1. Short-term (acute) over-

exposure: If you are overexposed to high concentrations of

benzene, well avove the levels where its odors are first

recognizable, you may feel breathless, irritxble, euphoric,

or giddy; you may experience irritation in eyes, nose, and

respiratory tract. You may develop a headache, feel dizzy,

nauseous, or experience unsteadiness in walking. Severe

exposures may lead to convulsions.

2. Long-term (chronic) exposure. Repeated or prolonged

exposure to benzene, even at relatively low concentrations,

_ may result in various blood disorders, ranging from anemia

to leukemia, an irreversible, fatal disease. Many blood dis-

orders associated with benzene exposure may occur without

physical symptoms.

III. PROTECTIVE CLOTHING AND EQUIPMENT

A. Respirators. Respirators are required for those opera-

tions in which engineering controls or work practice con-

trols are not feasible to reduce exposure to the permissible

level. If respirators are worn, they must have a National

Institute for Occupational Safety and Health (NIOSH)

seal of approval, and cartridges or canisters must be re-

placed before the end of their service life, or the end of the

shift, whichever occurs first. If you experience difficulty

breathing while wearing a respirator, tell your employer.

53a

B. Protective Clothing. You must wear impervious pro-

tective clothing (such as boots, gloves, sleeves, aprons, etc.)

over any parts of your body that could be exposed to liquid

benzene.

C. Eye and Face Protection. You must wear splash proof

safety goggles if it is possible that benzene may get into

your eyes. In addition, you must wear a face shield if your

face could be splashed with benzene liquid.

IV. EMERGENCY AND FIRST AID PROCEDURES

A. Eye and face exposure. If benzene is splashed in your

eyes, wash it out immediately with large amounts of water.

Call a doctor as soon as possible.

B. Skin exposure, If benzene is spilled on your clothing

or skin, remove the contaminated clothing and wash the

exposed skin with large amounts of water and soap imme-

diately. Wash contaminated clothing before you wear it

again.

C. Breathing. If you or any other person breathes in large

amounts of benzene, get the exposed person to fresh air at

once. Apply artificial respiration if breathing has stopped.

Call for medical assistance or a doctor as soon as possible.

D. Swallowing. If benzene has been swallowed and the

patient is conscious, do not induce vomiting. Call for medical

assistance or a doctor immediately.

V. MEDICAL REQUIREMENTS

lf you are exposed to benzene at a concentration at or

above 0.5 ppm on an 8-hour time-weighted average, your

employer is required to provide a medical history and lab-

oratory tests within 30 days of the effective date of this

standard and semiannually thereafter if you are continu-

ally exposed at or above 0.5 ppm. These tests shall be pro-

vided without cost to you. In addition, if you are accidental-

ly exposed to benzene (either by ingestion, inhalation, or

4a

skin/eve contact) under conditions known or suspected to

be toxic exposure to benzene, your employer is required to

make special tests available to you.

VI. OBSERVATION OF MONITORING

Your employer is required to perform measurements that

are representative of your exposure to benzene and you or

vour designated representative are entitled to observe the

mon. toring procedure. You are entitled to receive an ex-

planation of the measurement procedure, observe the steps

taken in the measurement procedure, and to record the

results obtained. When the monitoring procedure is taking

place in an area where respirators or personal protective

clothing and equipment are required to be worn, you or

your representative must also be provided with, and must

wear the protective clothing and equipment.

VII. ACCESS TO RECORDS

You or your representative are entitled to see the records

of measurements of your exposure to benzene upon request

to your employer. Your medical examination records can

he furnished to your physician or designated representative

upon request to your employer.

VIII. PRECAUTIONS FOR SAFE USE, HANDLING AND STORAGE

Benzene liquid is highly flammable. It should be stored in

tightly closed containers in a cool, well ventilated area.

Benzene vapor may form explosive mixtures in air, All

sources of ignition must be controlled. Use nonsparking

tools when opening or closing benzene containers. Ground

or bond metal benzene containers. Fire extinquishers, where

provided, must be readily available. Know where they are

located and how to operate them. Smoking is prohibited in

areas where benzene is used or stored. Ask your supervisor

where benzene is used in your work area and for additional

plant safety rules.

5da

APPENDIX B

Susstance TECHNICAL GUIDELINES, BENZENE

I. PHYSICAL AND CHEMICAL DATA

A. Substance identification.

1. Synonyms: Benzol, benzole, coal naptha, cyclohexa-

triene, phene, phenyl hydride, pyrobenzol. (Benzine, petro-

leum benzine, and benzine do not contain benzene.)

2. Formula: CeHe (CAS Registry Number : 000071432).

B. Physical data.

1. Boiling Point (760 mm Hg) ; 80.1C (176F)

2. Specific Gravity (water = 1) : 0.879

3. Vapor Density (air = 1): 2.7

4. Melting Point: 5.5C (42F)

). Vapor Pressure at 20C (68F) : 75 mm Hg

6. Solubility in Water: .06%

7. Evaporation Rate (ether = 1): 2.8

—_

8. Appearance and Odor: Clear, colorless liquid with a dis-

tinctive sweet odor.

II. FIRE, EXPLOSION, AND REACTIVITY HAZARD DATA

A. Fire.

1. Flash Point (closed cup): —11C (12F)

2. Autoignition Temperature: 580C (1076F)

3. Flammable Limits in Air, % by Volume: Lower 1.3%,

Upper: 7.5%

4, Extinguishing Media: Carbon dioxide, dry chemical, or

foam.

®. Special Fire-Fighting Procedures: Do not use solid

stream of water, since stream will scatter and spread fire.

56a

Water spray can be used to keep fire exposed containers

cool.

6G. Unusual fire and explosion hazards: Benzene is a flam-

mable liquid. Its vapors can form explosive mixtures. All

ignition sources must be controlled when benzene is used,

handled, or stored. Where liquid or vapor may be released.

such areas shall be considered as hazardous locations. Ben-

zene vapors are heavier than air; thus the vapors may travel

along the ground and be ignited by open flames or sparks at

locations remote from the site at which benzene is handled.

7. Benzene is classified as a 1 B flammable liquid for the

purpose of conforming to the requirements of 29 CFR

1910,.106. A concentration exceeding 3250 ppm is considered

a potential fire explosion hazard. Locations where benzene

may be present in quantities suflicient to produce explosive

or ignitable mixtures are considered Class I Group D for

the purposes of conforming to the requirement of 29 CFR

1910.309.

B. Reactivity.

1. Conditions contributing to instability: Heat.

2. Incompatibility: Heat and oxidizing materials.

3. Hazardous decomposition products: ‘Toxic gases and

vapors (such as carbon monoxide).

II, SPILL AND LEAK PROCEDURES

A. Steps to be taken if the material is released or spilled.

As much benzene as possible should be absorbed with suit-

able materials, such as dry sand or earth. That remaining

must be flushed with large amounts of water. Do not flush

benzene into a conlined space, such as a sewer, because of

explosion danger. Remove all ignition sources. Ventilate

enclosed places.

57a

B. Waste disposal method. Disposal methods must con-

form to other jurisdictional regulations. If allowed, benzene

may be disposed of: (a) Absorbing it in dry sand or earth

and disposing in a sanitary land fill; (b) if small quantities,

by removing it to a safe location from buildings or other

combustible sources, pouring it in dry sand or earth and

cautiously igniting it: (¢) if large quantities, by atomizing

it in a suitable combustion chamber.

IV. MONITORING AND MEASUREMENT PROCEDURES

A, Normal monitoring program, Measurements taken

from the purpose of determining employee exposure are

best taken so that the representative average 8-hour ex-

posure may be determined from a single 8-hour sample or

two (2) 4-hour samples. Short-time interval samples (or

grab samples) may also be used to determine average ex-

posure level if a minimum of five measurements are taken

in a random manner over the 8-hour work shift. Random

sampling means that any portion of the work shift has the

same chance of being sampled as any other. The arithmetic

average of all such random samples taken on one work shift

is an estimate of an employee's average level of exposure

for that work shift. Air samples should be taken in the

employee’s breathing zone (air that would nearly represent

that inhaled by the employee). Sampling must be performed

by gas absorption tubes or alternative methods meeting the

requirements of the standard with subsequent chemical an-

alysis, by gas chromatography. Methods meeting the pre-

scribed accuracy and precision and requirements are avail-

able in the ‘*NIOSH manual of Analytical Methods.’’

V. MISCELLANEOUS PRECAUTIONS

A. High exposures to benzene can occur when transfer-

ring the liquid from one container to another. Such opera-

tions should be well ventilated and good work practices

must be established to avoid spills.

58a

B. Use non-sparking tools to open benzene containers

which are effectively grounded and bonded prior to opening

and pouring.

C. Employers ust advise employees of all plant areas

and operations where exposure to benzene could occur.

Common operations in which high exposures to benzene

may be encountered are: the primary production and utili-

zation of benzene, and transfer of benzene.

APPENDIX C

MeEpIcaL SURVEILLANCE GUIDELINES FoR BENZENE

I, ROUTE OF ENTRY

Inhalation; possible skin absorption.

II. TOXICOLOGY

Benzene is primarily an inhalation hazard. Systemic ab-

sorption may cause depression of the hematopoietic system

and leukemia. Inhalation of high concentrations can affect

the central nervous system function. Aspiration of small

amounts of liquid benzene immediately causes pulmonary

edema and hemorrhage of pulmonary tissue. The extent of

absorption through the skin is unknown. However, absorp-

tion may be accelerated in the case of injured skin, and

benzene may be more readily absorbed if it is present in a

mixture or as a contaminant in solvents which are readily

absorbed. Defatting action of benzene may produce primary

irritation upon:repeated or prolonged contact with the skin.

High concentrations are irritating to the mucuous mem-

branes of the eyes, nose, and respiratory tract.

Ill. SIGNS AND SYMPTOMS

It is not clear to what extent benzene is absorbed through

the skin, however, direct contact may cause erythema or

blistering. Repeated or prolonged contact may result in

‘

ab

59a

drying, sealing dermatitis, or precipitate development of

secondary skin infections, Local effects of benzene vapor or

liquid on the eye are slight. Only at very high concentra-

tions is there any smarting sensation in the eye. Inhalation

of high concentrations of benzene may have an initial stim-

ulatory effect on the central nervous system characterized

by exhiliration, nervous excitation, and/or giddiness, fol-

lowed by a period of depression, drowsiness, fatigue, or

vertigo. There nay be sensation of tightness in the chest

accompanied by breathlessness and ultimately the victim

may lose consciousness. Convulsions and tremors occur fre-

quently, and death may follow from respiratory paralysis

or circulatory collapse in a few minutes to several hours

following severe exposures.

The insidious effect on the blood-forming system of pro-

longed exposure to small quantities of benzene vapor is of

extreme importance. The hematopoietic system is the chief

target for benzene’s toxic effects which are manifested by

alterations in the levels of formed elements in the peripheral

blood. These effects have been noted to occur at concentra-

tions of benzene which may not cause irritation of mucous

membranes, or any unpleasant sensory effects. Early signs

and symptoms of benzene morbidity are varied and often

not overtly apparent and not specific for benzene exposure.

Subjective complaints of headache, dizziness, and loss of

appetite may precede or follow clinical symptomology.

Bleeding from the nose, gums, or mucous membranes and

the development of purpuric spots may occur as the condi-

tion progresses. Rapid pulse and low blood pressure in addi-

tion to a physical appearance of anemia may accompany a

subjective complaint of shortness of breath. Clinical evi-

dence of leukopenia, anemia, and thrombocytopenia, singly

or in combination, have been frequently reported.

Bone marrow may appear normal, aplastic, or hyper-

plastic and may not in all situations correlate with periph-

eral blood forming tissues. There are great variations in

60a

the susceptibility to benzene morbidity which prohibits the

identification of ‘‘typical’’ blood picture. The onset of

effects of prolonged benzene exposure may be significantly

delayed after the actual exposure has ceased.

IV. TREATMENT OF ACUTE TOXIC EFFECTS

Remove from exposure immediately, give oxygen or arti-

ficial resuscitation if indicated. Flush eyes and wash con-

taminated skin. Symptoms of non-specific nervous distur-

bances may persist following severe exposures. Recovery

from mild exposures is usually rapid and complete.

V. SURVEILLANCE AND PREVENTIVE CONSIDERATIONS

A, GENERAL

The principal effects of benzene exposure forming the

basis for this regulation are alterations of the hematopoietic

system as reflected by changes in the peripheral blood and

leukemia. Consequently, the medical surveillance protocol

is designed to observe on a regular basis, blood indices for

early signs of these effects.

Tests must be performed frequently enough to discover

individuals who may be unusually sensitive and likely. to

develop marrow abnormalities, to monitor those who ex-

perience accidental overexposure and to provide early de-

tection of delayed evidence of toxicity.

All workers who are or will be exposed to 0.5 parts per

million (ppm) or greater benzene as an eight-hour time-

weighted average are to be given the opportunity for a

medical examination. Initial examinations are to be pro-

vided within 30 days of the effective date of this standard

or at the time of initial assignment and interval examina-

tions semiannually thereafter. There are special provisions

for medical tests in the event of hematological abnormalities

or for emergency situations.

6la

F. HEMATOLOGY GUIDELINES

The following information excerpted from the analysis

of Dr. Jandl, Chief of Hematology, Harvard School of

Medicine, may be useful to physicians in conducting the

medical surveillance program.

‘‘A minimum battery of tests is to be performed by

strictly standardized methods in the circumstances de-

scribed above.

1. Red cell, white cell, and platelet counts must be per-

formed using an automated (Coulter) counter. The normal

range for the red cell count is approximately 4.4 to 6.0

million cells/mm*, the values for women being about 0.4

million cells lower than for men. A decline from a normal

to a subnormal value, or a rise to a supra-normal value, are

indicative of potential toxicity, particularly should there

be a decline. The normal total white blood count is approxi-

mately 6,200 plus or minus 2,000/mm!. For cigarette smok-

ers and white count will be higher, the upper range of

‘*normal’’ being approximately 1,000 cells higher than 8,200.

Either a decline from normal to subnormal or a rise from

normal to supra-normal, should be regarded as a potential

indication of benzene toxicity. The normal platelet count is

250,000 with a range of 140,000 to (at most) 400,000/mm°.

A decline to below 140,000 or a rise to above 400,000 should

be regarded as possible evidence of benzene toxicity.

The reticulocyte count is performed by technical assis-

tants using a cover-slip smear (see below). In my opinion,

the preferred technique for this purpose is the so-called

‘*dry-method’’ employing brilliant cresyl blue (BCB) for

staining the filaments of reticulum within red cell, and

counter-staining with Wright’s stain. The extreme range

of normal for reticulocytes is 0.4 to 1.5 percent of the red

cells, the usual range being 0.5 to 1.2 percent of the red cells,

but the typical value is in the range of 0.8 to 1.0 percent.

There is an advantage of using the BCB reticulocyte stain-

62a

ing technique (followed by counter-staining with Wright’s

stain) in that visible evidence (i.e., the stained, mounted

reticulocyte smears) may be stored, and if kept filed in the

dark may later be retrieved for reexamination and compari-

sons. A decline in reticulocytes to levels of less than 0.4

percent is to be regarded as possible evidence (unless an-

other specific cause is found) of benzene toxicity requiring

accelerated surveillance. An increase in reticulocyte levels

to above 1.5 percent may also be consistent with (but is not

as characteristic of) benzene toxicity.

2. The single most important routine surveillance test is

an expert technician's careful examination of the peripheral

blood smear. As with the reticulocyte count, the smear

should be with fresh uncoagulated blood obtained from a

needle tip following venipuncture or from a drop of earlobe

hlood (capillary blood). If necessary, the smear may under

certain limited conditions be made from a blood sample

anticoagulated with EDTA (but never with oxalate or hep-

arin). When the smear is to be prepared from a specimen

of venous blood which has been collected by a commercial

Vacutainer® type tube containing neutral EDTA, the

smear should be made as soon as possible after the venesee-

tion. A delay of up to 12 hours is permissible between the

drawing of the blood specimen into EDTA and the prepara-

tion of the smear if the blood is stored at refrigerator (not

freezing) temperature. As with the reticulocyte prepara-

tions, the smear should be made on cover slips only. Under

no circumstances should peripheral blood (or bone marrow

aspirate) intended for examination be smeared on micro-

scope slides, a technique which produces artifacts in blood

cells and distorts the white cell differential count by severe-

ly maldistributing them. Dry blood smears should be stained

with Wright’s stain which should be filtered at least weekly

to remove precipated dye (saturated completely by methy-

lene blue-eosinate derivates).

63a

3. The minimum mandatory observations to be made

from the smear and a discussion of their significance now

follows. The observations are four:

a. The differential white blood cell count.

b, Description of abnormalities in the appearance of red

cells,

e. Deseription of any abnormalities in the platelets.

d. A careful search must be made by the technician

throughout the better areas of every blood smear for imma-

ture white cells such as band forms (in more than normal

proportion), any number of metamyeloeytes, myelocytes.

Any nucleated or multinucleated red blood cells should be

reported. Very large ‘‘giant’’ platelets of fragments of

megakaryocytes must be recognized. Should only a single

one of these abnormalities be found, it should be reported.

An increase in the proportion of band forms among the

neutrophilic granulocytes is an abnormality deserving spe-

cial mention for it represents a very early change which

should be considered as an early warning of benzene toxicity

in the absence of other causative factors (most commonly

infection). Likewise, the appearance of metamyeloevtes in

the absence of other probable cause is to be considered a

possible indication of benzene-induced injury.

An upward trend in the number of basophils, which nor-

mally do not exceed about 2.0 percent of the total white cells,

is to be regarded as possible evidence of benzene toxicity.

A rise in the eosinophil count is less specific but also may

be suspicious of toxicity if it rises above 6.0 percent of the

tota) wiute count.

The normal range of monocytes is from 2.0 to 8.0 percent

of the total white count an average of about 5.0 percent.

About 20 percent of individuals reported to have mild but

persisting abnormalities caused by exposure to benzene

show a persisting monocytosis which is sometimes striking.

64a

The findings of a monocyte count which persists at more

than 10 to 12 percent of the normal white cell count (when

the total count is normal) or persistance of an absolute

monocyte count in excess 800/mm®* should be regarded as

a possible sign of benzene-induced injury.

A less frequent but more serious indication of benzene-

induced injury to the bone marrow is the findings in the

peripheral blood of the so-called **pseudo’’ (or aequired)

Pelger-Huet anomaly. In this anomaly many, or sometimes

the majority, of the neutrophilic granulocytes possess two

round nuclear segments—less often one or three round seg-

ments—rather than three normally elongated segments.

When this anomaly is not hereditary, it is often but not

invariably predictive of subsequent leukemia. However,

only about two percent of patients who ultimately develop

acute myelogenous leukemia show the acquired Pelger-Huet

anomaly.

An uncommon but ominous sign, one which cannot be

detected from the smear, but can be suspected easily by a

**sucrose water test’’ or peripheral blood, is transient pa-

roxysial nocturnalhemoglobinuria (PNH), which inay first

oceur insidiously during a period of established aplastic

anemia and maybe followed within one to a few vears by

the appearance of rapidly fatal acute myelogenous leu-

kemia. Clinical detection of PHH, which occurs in perhaps

only one er two percent of those destined to have acute

myelogenous leukemia, may be difficult; if the presumptive

‘*sucrose water test’’ for it is positive, the technician may

perform the somewhat more definitive Ham test, also known

us the acid-serum hemolysis test.

e. Individuals documented to have developed acute myelo-

genous leukemia years alter initial exposure to benzene,

have (see above) progressed through preliminary phases

of hematologic abnormality. In many instances pancyto-

penia(i.e., a lowering in the counts of all circulating blood

cells of bone marrow origin—but not to the extent implied

—

65a

by the term ‘‘aplastic anemia’’) preceded leukemia for

many years. Seldom does relative scarcity of a single type

blood cell (or of platelets) represent a harbinger of im-

minent acute leukemia. However, the finding of two or more

cytopenias, or of pancytopenia, must be regarded as highly

suspicious of more advance although still reversible, ben-

zene toxicity. When ‘‘pancytopenia’’ develops and becomes

associated with the appearance of immature cells (myelo-

cytes, myeloblasts, erythorblasts, etc.), with abnormal cells

(pseudo Pelger-Huet anomaly, atypical nuclear hetero-

chromatin, ete.), or with inappropriate elevations of mono-

eytes, basophils, or eosinsophils, the findings must be re-

garded as evidence of benzene overexposure unless proved

otherwise. These and other aggregates of alterations are

frequently termed ‘‘preleukemia,’’ a term whose meaning

is good when used retrospectively, but less good when used

prospectively where it has only inferential value. Many

severely aplastic patients manifested the ominous finding

of 5-10 percent myeloblasts in the marrow, occasional myelo-

blasts and myeloeytes in the blood and 20-30% monocytes:

these represented the beginning of recovery rather ‘than

the early stage of overt AML. Thus, a considerable propor-

tion of **preleukemias’’ in benzene poisioning fail to pro-

gress to leukemia. Indeed, some have been observed to

revert to normal after withdrawal of the afflicted person

from toxic exposure. Nonetheless, the chance that ‘‘pre-

leukemic’’ (changes in general) will evolve to leukemia is

considerable: at least 20 to 40 percent of persons (only a

few of whom were benzene-exposed) with these blood chang-

es develop acute myelogenous leukemia. Certain tests may

substantiate the person’s prospects for progression or re-

gression. One such test would be an examination of patient’s

bone marrow. But the decision to perform a bone marrow

aspiration or needle biopsy is one that should be made by

the hematologist. The findings to be sought there would be:

hypoplasia or aplasia; an excess of inmimature forms: vacu-

vlation in erythroblasts and myeloeytes—a phenomenon

66a

induced by many toxins apart from benzene, including chlo-

ramphenicol and alcohol; and by infections.

The findings of basophilic stippling in circulating red

blood cells (usually found in 1 to 5% of red cell during

marrow injury), and detection in the bone marrow of what

are termed ‘‘ringed sideroblasts’’ must be taken seriously,

as they have been noted in recent vears to be frequent

premonitory signs of subsequent acute leukemia.

In several recent reports dealing with relatively few

patients, peroxidase-staining of circulating or marrow neu-

trophil granules, employing benzidine dihydrochloride, has

revealed as a ‘‘preleukemic’’ finding the disappearance of,

or dimunition in, perosidase in a sizable proportion of the

granulocytes. Granulocyte granules are normally strongly

peroxidase positive. A steady decline in leukocyte alkaline

phosphatase is also suggestive of early acute leukemia.

Exposure to benzene commonly causes an early rise in

serum iron, often but-not always associated with a fall in

the reticulocyte count. Thus serial measurements of serum

iron levels provide a means of determining whether or not

there is a trend representing sustained suppress of erythro-

poiesis.

Measurement of serum iron, determination of peroxidase

and of alkaline phosphatase activity in peripheral granulo-

cytes can be performed by technical assistants.

(Sees. 4, 6, 8, 84 Stat. 1593 (29 U.S.C. 653, 655, 657) ; See-

retary of Labor’s Order 8-76 (41 FR 25059) ; 29 CFR part

1911.)

[FR Doc. 78-3417 Filed 2-5-78; 1:12 pm]

Ora

APPFIIDIX C

TITLE 29—LABOR

CHAPTER XVII

OccupaTionaL Sarety AND HeattH ADMINISTRATION,

DEPARTMENT OF LABOR

PART 1910

OccuPATIONAL SAFETY AND HEattH STANDARDS

OccuPATIONAL Exposure to BENZENE

AGENCY: The-Occupational Safety and Health Admin-

istration, Department of Labor.

ACTION: Permanent standard for the regulation of

benzene.

SUMMARY: This standard is based on a determination

by the Occupational Safety and Health Administration

(OSHA) that the available scientific evidence establishes

that employee exposure to benzene presents a cancer haz-

ard—specifically, the hazard of developing leukemia. There-

fore, in accordance with OSHA’s regulatory approach to

the control of employee exposure to carcinogens, this stan-

dard limits employee exposure to benzene to the lowest

feasible level, in this case 1 part benzene per million parts

of air (1 ppm) as an 8 hour. time—weighted average con-

centration, with a ceiling level of 5 ppm for any 15 minute

period during the 8 hour day. The standard also prescribes

limits on eye and skin contact with benzene.

The standard provides for the measurement of employee

exposure, engineering controls, work practices, personal

protective clothing and equipment, signs and labels, em-

ployee training, medical surveillance and recordkeeping.

EFFECTIVE DATE: March 13, 1978.

68a

FOR FURTHER INFORMATION CONTACT:

Mr. Gail Brinkerhoff, Office of Compliance Programs,

OSHA, Third Street and Constitution Avenue N.W.,

Room N3112, Washington, D.C. 20210, telephone 202-

523-8034.

SUPPLEMENTARY INFORMATION: This permanent

Occupational Safety and Health standard is issued pursu-

ant to sections 6(b), 6(¢) and 8(c) of the Occupational

Safety and Health Act of 1970 (the Act) (84 Stat. 1593,

1596, 1599; 29 U.S.C. 655, 657), the Secretary of Labor’s

Order No. 8-76 (41 FR 25059) and 29 CFR Part 1911. The

new standard on occupational exposure to benzene which

appears at 29 CFR 1910.1028, applies to all employment in

all industries covered by the Act. For reasons set out below,

the standard does not apply to the distribution or use of

gasoline and other fuels, used as fuels, subsequent to dis-

charge from bulk terminals. Moreover, the standard applies

labelling and training requirements only to sealed, intact

containers of benzene.

This document also amends Table z-2 of 29 CFR 1910.1000

hy adding a footnote which provides that benzene exposures

not covered by the new § 1910.1028 are still covered by the

exposure level and other requirements of §1910,1000. Pur-

suant to section 4(b)(2) of the Act, OSHA has determined

that this standard is more effective than corresponding stan-

dards now applicable to the maritime and construction in-

dustries and currently contained in Subpart B of Part 1910,

and Parts 1915, 1916, 1917, 1918 and 1926 of Title 29, Code

of Federal Regulations. Therefore, those corresponding

standards are superseded by the new standards in §1910.

1028. A new paragraph (c) is added to § 1910.19 to clarify

the applicability of this new benzene standard to the con-

<truction and maritime industries.

69a

lL. BackGRoUND

Benzene (CeHe) is a clear, colorless, non-corrosive, highly

flammable liquid with a strong, rather pleasant odor. Ben-

zene’s low boiling point and high vapor pressure cause it

to evaporate rapidly under ordinary atmospheric condi-

tions, giving off vapors nearly three times heavier than air.

Benzene is produced primarily by the petrochemical and

petroleum refining industries by a process called catalytic

reformation, which converts certain lower octane hydro-

carbons into higher octane aromatics. These two industries

are responsible for 94 percent of the total U.S. production

of benzene. Recovery through catalytic reformation, includ-

ing the benzene formed from the hydroalkylation of toluene,

accounts for almost 80 percent of the total quantity pro-

duced. Recovery of coal-derived benzene, primarily as a

by-product of the coking process in steel mills, was once

the major source of benzene. Today, however, it accounts

for only 6 percent of the total U.S. production.

The production of benzene is rapidly expanding with ap-

proximately 11 billion pounds produced in 1976. Only eleven

other chemicals and only one other hydrocarbon (ethylene)

are produced in greater tonnage in the U.S. Approximately

86 percent of this benzene is used chiefly as an intermediate

in the production of other organic chemicals, including

styrene, phenol, and cyclohexane, The remaining amount is

used primarily in the manufacture of detergents, pesticides,

solvents and paint removers. Benzene is also present as a

component of motor fuels, averaging less than 2 percent in

gasoline.

The first major industrial use of benzene, however, was

as a solvent in the rubber industry just preceding World

War L. During World War I, benzene production was stiin-

ulated greatly by the demand for and resulting production

of toluene in the manufacture of explosives. The large quan-

tities of benzene which were produced, resulted in its more

70a

widespread use as a starting point for the manufacture of

various organic compounds. This situation led to greatly

increased uses of benzene as a solvent in the artificial leath-

er, rubber goods, and rotogravure industries.

Industries and processes currently using benzene include

the chemical, printing, lithograph, rubber cements, rubber

fabricating, paint, varnish, stain removers, adhesives, and

petroleum industries. Benzene is also used extensively in

chemical laboratories as a solvent and as a reactant in

numerous chemical applications. Where benzene is pro-

duced and used in large amounts it is generally used in

enclosed systems, although exposures can occur during

liquid transfer operations, from equipment leakage and

carryover losses, and in maintenance operations.

Il. History or ReGuLatrion

Benzene has been recognized as a toxic substance capable

of causing acute or chronie effects since 1900, In 1927, on

the basis of extensive examination of exposed workmen and

animal inhalation data, Winslow recommended an exposure

limit of 100 ppm for benzene (Mx. 156-3, Annex D).? In

1934, partially as a result of the fact that benzene tonicity

in the shoe leather industries was a serious problem in that

state, the Massachusetts Department of Labor and Indus-

tries established a Division of Occupational Hygiene (Ix.

156-3, p. 2). Relying on reports by Bowditch, Hunter, Mal-

' The exhibit numbers used in this document refer to the certified

exhibit list of the benzene rulemaking proceeding. The first number

designates the particular exhibit on that list. Where the exhibit

contains more than one item, the second number references the

particular item of the exhibit. The designation **PC’’ refers to post-

hearing comments in Exhibit 217. The designation ‘*Tr’’ refers to

the transcript of the benzene hearing and indicates the pages of that

transcript which are referenced.

All references in this document are intended to provide examples

of record support for the information stated.

71a

lory and Elkins of cases of benzene poisoning occurring at

concentrations below LOO ppm, the Massachusetts Division

of Occupational Hygiene reduced the maximum acceptable

limit (MAC) to 75 ppm (Hx. 156-3, pp. 6-7). In the 1940's,

as a result of blood abnormalities and one death among

leather workers exposed to benzene concentrations ranging

from 40 to 80 ppm, Massachusetts lowered the permissable

limit of benzene exposure to 35 ppm (Elkins Ix. p. 7).

The American Conference of Governmental industrial

Hygienists (ACGIH) recommended in 1946 a threshold

limit value (TLY) for benzene exposure of 100 ppm. This

TLY was reduced in 1947 to 50 ppm. In 1948, following

Massachusetts’ lead, ACGLH adopted a TLV of 35 ppm.

In 1963, a TLV of 25 ppm was proposed by the ACGLIL.

The effects of benzene noted by ACGTH at this time were

blood changes, aplastic anemia and other blood dyscrasias.

No mention was made of any association of leukemia with

benzene exposure (fox. 191). It was not until 1974 that the

ACGIH adopted the TLV of 10 ppm which had sometime

earlier been recommended by the American National Stan-

dards Institute (lx. 156-3, p. 7).

The present OSHA standard for benzene (29 CFR Part

1910.1000, Table Z-2) was adopted in 1971 from the Z 37.4—

1969 consensus standard of the American National Stan-

dards Institute (ANSI). The OSHA standard was adopted

without rulemaking under the authority of section 6(a) of

the Act. It prescribes, as the ANSI standard, an 8-hour

TWA of 10 ppm with an acceptable ceiling concentration of

25 ppm and, in addition, allows excursions above the ceiling

to a maximum peak concentration not to exceed 50 ppm

for more than 10 minutes in any 8-hour work period. Neither

the ANST standard nor the resultant OSHA standard was

based on the possible leukemogenie effects of exposure to

henzene,

In 1974, pursuant to section 22(d) of the Act, the Director

of NIOSH submitted to the Secretary of Labor a criteria

72a

document concerning occupational exposure to benzene

which stated that ‘‘the possibility that benzene can induce

leukemia cannot be dismissed.’’ (lx. 382A, p. 1). However,

NIOSH recommended retention of the existing permissible

exposure limit to 10 ppm and ceiling concentration of 25

ppm as measured over a 10 minute period. This recommen-

dation was not based on benzene’s potential leukemia haz-

ard.

Ina letter to the Secretary of Labor, dated April 23, 1976,

the United Rubber, Cork, Linoleum, and Plastic Workers

of America urged that an emergency temporary standard

regulating occupational exposure to benzene be issued (Ex.

2-42). This request was denied on May 18, 1976 by then

Secretary of Labor, William J. Usery (x. 2-45).

Also in 1976, the National Academy of Sciences under

contract with the United States Environmental Protection

Agency, reviewed the literature concerning health effects

of benzene exposure (Ex. 2-4). The Academy concluded

that benzene must be considered a suspect leukemogen.

In August 1976, NIOSH submitted to OSHA an updated

criteria document which revised its earlier assessment of

1974 (Ex. 2-6). On the basis of a review of old studies and

new data, NIOSH concluded in that document that benzene

was a leukemogen. This report further pointed out that

‘‘it is apparent from the literature that benzene leukemia

continues to be reported.’* NIOSH, therefore, recommend-

ed that since no safe level for benzene exposure could be

established that, ‘‘no worker be exposed to benzene in

excess of 1 ppm in air.’’ Following publication of the up-

dated criteria document, the Director of NIOSH recom-

mended to the Assistant Secretary of Labor, by letter dated

October 27, 1976, that OSHA publish an emergency tem-

porary standard for benzene establishing the exposure level

at 1 ppm (Ex, 2-6).

73a

Based on the information supplied by NIOSH, OSHA

issued on January 14, 1977, volwmtary ‘‘Guidelines for Con-

trol of Occupational Exposure to Benzene,’’ recommending

that exposure to benzene in air not exceed an 8-hour time-

weighted average to 1 ppm in any 8-hour shift of a 40-hour

week (Ex, 2-44).

In January 1977, NIOSH informed OSHA that work-

place environments had been found in St. Mary’s and

Akron, Ohio where a sufficient number of employees had

heen exposed to benzene for a number of vears to facilitate

an epidemiological study of health risks (lx. 2-45). The

worksite was a manufacturing plant owned by Goodyear

Tire and Rubber Company which utilized benzene at various

stages in the production of pliofilm. The preliminary con-

clusions of the epidemiological study, which NIOSH con-

ducted of the pliofilm workers, were transmitted to OSHA

on April 15, 1977. In his letter of April 15, 1977, transmit-

ting this report, the Director of NIOSH again urged that

an emergency standard be issued (Ex. 2-7).

On May 3, 1977, the Assistant Secretary for OSHA is-

sued an Emergency Temporary Standard for Occupational

Exposure to Benzene (42 FR 22516), pursuant to sections

6(c¢) and 8(c) of the Act, Secretary of Labor’s Order No.

8-76, and 29 CFR Part 1911. A correction document was

published on May 10, 1977 (41 FR 23601), and an amend-

ment to the emergency temporary standard as published

on May 24, 1977 (42 CFR 26429). The evidence and findings

supporting issuance of the emergency temporary standard

and its amendment and a discussion of its provisions are

set forth in the aforementioned Federal Register publica-

tions. The emergency temporary standard was to have been

effective on May 21, 1977. However, as a result of challenges

to that standard, filed both in the Court of Appeals for the

District of Columbia (udustrial Union, AFL-CIO v. Bing-

ham, No. 77-1395) and in the Court of Appeals for the Fifth

Circuit (API v. OSHA, No. 77-1516), a temporary restrain-

74a

ing order was issued by the Fifth Circuit on May 20, L977,

and the standard never officially went into effect.

On May 27, 1977, OSHA published a proposed permanent

standard to control occupational exposure to benzene (42

FR 27452). The emergency temporary standard and its

preamble, which the new proposal supplemented, were in-

corporated in that proposal. The /ederal Register docu-

ment setting forth the proposal also contained a notice of

hearing scheduling an informal public hearing to be held

pursuant to section 6(b)(3) of the Act, and requesting the

submission of written comments, data, views and arguments

on all the issues raised by the proposed permanent standard

and the emergency temporary standard. Subsequently, on

June 24, 1977 (42 FR 32263), OSHA excluded from the

scope of the benzene hearing and from the final permanent

standard those activities related to the storage, transporta-

tion, distribution, dispensing and sale of gasoline as a fuel

subsequent to its discharge from bulk terminals. OSHA

explained in that notice its intention to assess the regula-

tory action to be taken to protect workers involved in these

activities after conclusion of the deliberations of a joint

EPA-NIOSH-OSHA Task Force.

The public hearings on the benzene proposal were held

July 19 through August 10, 1977. A total of 95 individuals

appeared at these hearings as witnesses. Among the wit-

nesses were employers and emplover associations from a

variety of industries: petroleum refining, petrochemical,

oil and gas production, aviation fueling; and coke ovens

and coke by-products. In addition, representatives of the

affected workforce, including a number of employees who

have been exposed to benzene, unions, government agencies,

public interest groups and other interested parties ap-

peared. Furthermore, comments were received from repre-

sentatives of other industries, such as analytical and re-

search laboratories, paint manufacturing, construction,

maritime, and rubber manufacturing and from users of

Ta

pure benzene as well as users of benzene contaminated

solvents. Public participation was representative of a large

segment of the benzene users. The verbatim transcript of

the hearings, as well as the humerous comments, exhibits

and briefs submitted to OSHA before, during and after

the hearings, are part of this rulemaking record, along with

other relevant documents. The hearing record was origin-

ally scheduled to close on August 20, 1977 but, at the request

of industry participants, the record was kept open until

September 2, 1977 for the submission of additional evidence

and until September 27, 1977 for the submission of briefs,

summaries and arguments.

In conjunction with the development of the proposed

standard, OSHA prepared a draft environmental impact

statement. The draft environmental statement was pub-

lished in the Federal Register (42 FR 27455). On June 17,

1977, the Council on Environmental Quality published a

notice of availability of the benzene draft environmental

impact statement (Ex, 7). In addition to the 45-day com-

ment period specified in 29 CFR 1999.4(¢), the environ-

mental impact of the proposed standard was also an issue

for the benzene hearing as provided by 29 CFR 1999.4(h)

and the notice of proposed rulemaking (42 FR 27452). A

notice of availability of the final environmental impact

statement for benzene was published on February 3, 1978

by EPA (43 FR 4674).

In addition to the draft environmental impact statement,

OSHA prepared an economic and inflationary impact as-

sessment of the proposed standard evaluating factors rele-

vant under section 6(b) of the Act (29 U.S.C. 655(b) (5),

Secretary of Labor’s Order 15-75 (40 FR 54484) and Ex-

ecutive Orders Nos. 11821 (39 FR 41501) and 11949 (42

KR 1017). The notice of the proposed standard indicated

that the economic impact of this proposal was to be con-

sidered at the hearing (42 FR 27452) and certified that the

economic and inflationary impact of the proposed standard

ToOa

has been carefully evaluated in accordance with Executive

Orders 11821 and 11949.

This permanent benzene standard is based on a careful

consideration of the entire record in this proceeding, in-

cluding materials relied on in the emergency temporary

standard, materials referenced in the proposal, and the

record of the informal rulemaking hearing including the

transcript, exhibits and pre-hearing and post-hearing writ-

ten comments. Copies of the official list of hearing exhibits,

comments, and notices of intent to appear at the hearing

can be obtained from the Docket Office, Docket H-059, Room

$6212, U.S. Department of Labor, 3rd Street and Constitu-

tion Avenue N.W., Washington, D.C. 20210.

Ill. Pertinent Lecoau AuTHORITY

The primary purpose of the Act is to assure, so far as

possible, safe and healthful working conditions for every

working man and woman. One means prescribed by Con-

gress to achieve this goal is the authority vested in the

Secretary of Labor to set mandatory safety and health

standards.

Occupational safety and health standards provide notice

of the requisite conduct or exposure level and provide a

basis for assuring the existence of sate and healthful work-

places. The act provides that:

The Secretary, in promulgating standards dealing

with toxic materials or harmful physical agents under

this subsection, shall set the standard which most ade-

quately 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 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 research, demon-

xtrations, experiments, and such other information as

may be appropriate. In addition to the attainment of

77a

the highest degree of health and safety protection for

the employee, other considerations shall be the latest

available scientific data in the field, and feasibility of

the standards, and experience gained under this and

other health and safety laws. (Section 6(b)(5).)

Sections 2(b)(5) and (6), (20), (21), (22), and (24) of

the Act reflect Congress’ recognition that conclusive med-

ical or scientific evidence including causative factors, epl-

demiological studies or dose-response data may not exist

for many toxic materials or harmful physical agents. Never-

theless, standards cannot be postponed because definitive

medical or scientific evidence is not currently available.

Indeed, standards need only be based on the best available

evidence. The legislative history makes it clear that ‘‘it is

not intended that the Secretary be paralyzed by debate

surrounding diverse medical opinion.’’ House Committee

on Hdueation and Labor, Report No. 91-1291, 91st Cong.,

2d Session, p. 18 (1970). This Congressional judgment is

supported by the courts which have reviewed standards

promulgated under the Act. In sustaining the standard for

occupational exposure to vinyl chloride (29 CFR 1910.1017),

the U.S. Court of Appeals for the Second Cireuit stated

that ‘tit remains the duty of the Secretary to act to protect

the working man, and to act even in circumstances where

existing methodology or research is deficient.’’ ‘Society

of the Plastics Industry Inc. v. Occupational Safety and

Health Administration,’’ 509 F.2d 1301 (CLA. 2 1975). cert.

den. 99S. Ct. 1998, 4 L.d.2d 482 (1975). A similar rationale

was applied by the U.S. Court of Appeals for the District

of Columbia Circuit in reviewing the standard for oceupa-

tional exposure to asbestos (29 CFR 1910.1001). The Court

stated that:

Some of the questions involved in the promulgation

of these standards are on the frontiers of scientific

knowledge, and consequently as to them insufficient

data is presently available to make a fully informed

factual determination, Decision-making must in that

78a

circumstance depend to a greater extent upon policy

judgments and Jess upon purely factual judgments.

‘Industrial Union Department, AlL-CIO vy. Hodgson,”

499 F.2d 467, 474 (C.A.D.C. 1974).

In setting standards, the Secretary is expressly required

to consider the feasibility of the proposed standards. Senate

Committee on Labor and Public Welfare, S. Rep. No, 9t-

1282, 91st Cong., 2d Sess., p. 58 (1970). Nevertheless, con-

siderations of technological feasibility are not limited to

devices already developed and in use. Standards may re-

quire improvements in existing technologies or require the

development of new technology. “‘Society of the Plastic

Industry, Inc. v. Occupational Safety and Health Adminis-

tration,’ supra at 1309.

Where appropriate, the standards are required to include

provisions for labels or other forms of warning to apprise

employees of hazards, suitable protective equipment, con-

trol procedures, monitoring and measuring of employee

exposure, employee access to the results of monitoring, and

appropriate medical examination (section 6(b)(7)). Stan-

dards may also prescribe recordkeeping requirements

where necessary or appropriate for enforcement of the Act

or for developing information regarding occupational acci-

dents and illnesses (section 8(¢)). The permanent standard

for benzene was developed on the basis of the above legal

considerations.

TV. Heactu EBrrecrs

A. GENERAL

Inhalation is the primary route of entry of benzene in

man. Benzene diffuses rapidly through the lungs and is

quickly absorbed into the blood. The rate of absorption is

ereatest during the first five minutes and thereatter de-

clines significantly. Benzene saturation of the circulating

blood may reach as high as 70-80 percent saturation level

within the first 30 minutes. However, relatively complete

79a

saturation of the blood may not be attained for two to

three days.

The benzene absorbed by the circulating blood is dis-

tributed throughout the body where, because of its liposo-

lubility, it tends to accumulate in various body organs in

proportion to their fat content.

Upon removal from benzene exposure, the concentration

of benzene in the expired breath follows an exponential

decay curve, reflecting removal of benzene from various

body compartments. Mlimination via this route for rela-

tively high concentrations has been estimated to range from

12 to 50 percent of the total amount of benzene absorbed in

humans.

Most of the absorbed benzene remaining ultimately is

metabolized by enzymes contained in the liver to derivatives

which are more water soluble thereby facilitating their re-

moval by the kidneys. A first intermediate in the biotrans-

formation of benzene is believed to be benzene epoxide, a

highly reactive chemical. This is one of several candidates—

others: Hydroquinone and catechol (Snyder Tr. 3229),

suggested as the active agent responsible for benzene’s

hematotoxic effects. Phenol, and to a lesser extent, hydro-

quinone, pyrocatechol, and phenyl-mercapturie acid are

the primary metabolites of benzene found in urine.

B. ACUTE EFFECTS

lixposures to high concentrations of benzene produce an

almost immediate effect upon the central nervous syste.

Benzene concentrations near 20,000 ppm are fatal within

minutes, with death occurriig from acute circulatory fail-

ure or coma, with or without convulsions. Milder exposures

produce a period of nervous excitation, euphoria, headache

and nausea, followed by a period of depression which can

result in cardiovascular collapse and/or unconsciousness.

The occurrence of nonspecific nervous disturbances as an

80a

after-effect of acute exposures is dependent on duration of

unconsciousness and/or severity of circulatory failure.

Breathlessness, nervous irritability, and unsteadiness in

walking have been observed to persist for a period of sev-

eray weeks. Inhalation of still lower concentrations (250-

500 ppm) yields signs and symptoms of mild poisoning,

characterized by vertigo, drowsiness, headache, and nausea.

Rapid recovery from these syniptoms usually oceurs fol-

lowing cessation of exposure.

These effects due to acute exposures to high concentra-

tions of benzene have been recognized for many years and

are well documented in classic toxicological textbooks and

literature.

Direct contact with the liquid may cause erythema and

blistering. Prolonged or repeated skin contact, even with

small quantities of benzene, has been associated with the

development of dry, scaly dermatitis, or with secondary

dermal infections.

C, CHRONIC EFFECTS

1. Background, The primary focus of this regulation is to

minimize worker risk resulting from chronic exposure to

low levels of benzene. These effects of benzene exposure in

man have been recognized for approximately 80 years. As

benzene attacks the hematopoietic (blood-forming) systems

and especially the bone marrow, its toxicity is manifested

primarily by alterations in the level of the formed elements

in the circulating blood (red cells, white cells, and platelets).

The degree of severity ranges from mild and transient epi-

sodes to severe and fatal disorders. The mechanism by

which benzene produces its toxic effects, although under

investigation, is still unknown. (Goldstein, fx. 43.B, p. 132).

The adverse hematopoietic effects of benzene, including

leukemia, have been documented in a variety of industries

and occupations and include the rubber, shoe, rotogravure,

painting, chemical processing, can manufacturing indus-

8la

tries and more recently, the manufacture of natural rubber

cast film. These studies range from single case reports,

through cross-sectional studies to retrospective studies of

morbidity-mortality among a defined cohort of workers in-

dustrially exposed to benzene, An important distinction

among these investigations is that the cross-sectional meth-

od detects cases of mild benzene-induced hematotoxic effects

in current employees who do not demonstrate signs of overt

toxicity, whereas the retrospective method detects overt

and fatal toxic effects subsequent to termination of employ-

ment.

OSHA is aware of the varying quality of the individually

reported studies. Based on a review of the entire set of

studies, taken as a whole, the accumulated evidence is con-

clusive that benzene exposure is causally related to the

induction of leukemia (a cancer of the blood-forming sys-

tem), various cytopenias (decreased levels of a formed

element in the circulating blood), aplastic anemia (a non-

functioning bone marrow) and to development of chromo-

somal aberrations.

The evidence supportive of this conclusion is derived

from: (a) A high degree of association of blood dyscrasias

with benzene exposure; (b) the apparent lack of a similar

association with other known volatile chemicals in the same

workplace; (c) outbreaks of hematotoxicity temporarily

related to the introduction of benzene to an industry and

conversely, a reduction in blood-related disease when other

solvents are substituted for benzene; and (d) the experi-

mental demonstration of marrow toxicity in animals solely

exposed to benzene (Goldstein, Ex. 43B, p. 133).

The following studies are representative, although by no

means all inclusive, of the published literature on the

chronic effects of benzene exposure. These investigations

do, however, illustrate the diversity and variability of the

effects which dominate published reports. There are also

several recent reviews and summaries concerning the hema-

82a

tological effects resulting from benzene exposure (See:

Vigliani and Forni, Ex. 2-15; National Research Council,

Ex. 2-4; NIOSH, Ex. 2-3, 2-5; NYU report; Ix. 43.B and

ORC/Jandl, P.C. 34; Snyder and Kocsis, Mx. 2.B-288, and

the International Workshop on the Toxicology of Benzene

(‘‘International Workshop’’) (x. 18).

2. Non-Malignant Blood Disorders.

a. Human studies. The most common effect resulting from

chronic exposure to benzene is a decrease in the levels of

erythrocytes (red blood cells), leukocytes (white blood

cells) and thrombocytes (platelets) in the circulating blood.

In simplified terms, a decline in red cells is termed anemia,

a decrease in the level of white cells is leukopenia and a

decline in the platelet count is called thrombocytopenia.

Persons found to have depressed blood cell counts may or

may not depending, in part on the severity of the decline,

display overt physical symptoms. Anemia results in a de-

creased capacity of the blood to transport oxygen to various

parts of the body, and persons so diagnosed may appear

pale and weak and fatigue easily. However, the non-specific

symptoms may develop gradually and not require medical

attention until there are significant declines in red cell

counts and blood hemoglobins. Chronie anemia may also

result in physical adjustments by the cardiovascular system

and exacerbate difficulties in those with coexisting disease

such as coronary insufficiency or chronic obstructive bron-

chopulmonary disease (Wintrobe, x. 2A-107, p. 532).

Since white cells provide a defense against many diseases,

persons with leukopenia are prone to recurrent infections.

Goldstein has written that ‘‘ Infections are a dreaded com-

plication of bone marrow toxicity and not uncommonly as-

sociated with a cause of death in benzene-induced pancyto-

penia’’? (Ex. 43B, p. 144). Thrombocytopenia results in an

2In the NYU review of *‘A Critical Evaluation of Benzene

‘Toxicity’, Goldstein uses the term pancytopenia-in a general sense,

Soa

impaired clotting of the blood, end persons with this dis-

order may exhibit bleeding tendencies, such as easy brus-

ing’, nosebleeds, and hemorrhage.

-ancytopenia and aplastic anemia are more serious con-

ditions in which all 3 formed elements are depressed. These

non-cancerous diseases may, in and of themselves, be fatal.

An additional concern is that some or all of these disorders

induced by benzene, may, if allowed to continue, either pro-

gress to or represent a preleukemia stage which may even-

tually evolve into a frank leukemia.

Among the early studies describing benzene toxicity was

that of Selling (fx. 2-12). He observed a significant de-

pression in the levels of cireulating blood cells in workers

employed where benzene was used as a solvent for rubber.

Because of the depressed condition seen in the marrow of

defined as a decrease in the level of circulatory erythrocytes, granu-

locytes, and platelets. His rationale is that there is excellent evi-

dence which suggests that all of these cell lines originate from a

common precursor stem cell (Exhibit 43B, p. 135). While noting

that aplastic anemia is, in a pure sense, an absence or a decrease

in identifiable granulocyte, erythrocyte, and platelet precursors

within the marrow itself, Goldstein finds that it is useful to include

aplastic anemia or hypoplastic anemia under the category of pancy-

topenia. This is because in some human cases of pancytopenia in-

duced by benzene and in some animal experiments, a hyperplasia

of the bone marrow is observed; also there exists the possibility that

sampling errors may affect attempts to quantitate bone marrow

precursor cells, since only a small fraction of the marrow is observed

by aspiration techniques.

Ilowever, Jandl feels that aplastic anemia is not a sufficiently

explicit term to describe failure of ‘‘marrow to provide an ade-

quate popwation of dividing blood cells for the 3 series of formed

elements,’’ and observes that the terminology ‘‘aplastic anemia’’

has been applied to states of chronic or non-acute marrow suppres-

sion, Whether or not anemia was the most striking feature (ORC/

Jandl PC 34, p. 88, Add. 3(i)). Other terms used synonymously

have been ‘“‘hypoplastic anemia, bone marrow failure, refractory

Sta

his patients and the results of extensive animal experiments

(where he was able to produce both destructive and ‘‘regen-

erative’’ effects by subcutaneous injection of benzene),

Selling suggested that the cause of the cytopenias observed

in the workc4+s was due to an aplasia of the marrow.

An important early milestone of the benzene literature

was the 1922 report by Hamilton entitled ‘*The Growing

Menace of Benzene (Benzol) Poisioning in American In-

dustry’’ (Ex. 159.C).

The document attempted to alert the medical community

to the dangers associated with chronic benzene poisoning

which was less well known than acute toxicity. This was

followed several years later by the reports of the National

Safety Council (NSC) which reported the prevalence of

known cases by chronic benzene poisoning. These results

are summarized by Jandl as follows:

The magnitude of toxicity—primarily consisting of

lowered blood cell counts—was shockingly high. Over

half of the workers exposed for a year or more had

abnormalities or cytopenias of the blood cells, a great

aneinia and aregenerative anemia.’’ Based on the degree of severity

exhibited, Jandl recognizes 2 phases of marrow failure:

‘*fB]y convention, a diminution in the level of all blood cells

produced in the marrow accompanied by evidence that bone marrow

cellularity is deficient, but from which recovery occurs, usually,

termed ‘pancytopenia.’ And by convention, a more sustained, more

severe, more likely fatal suppression of the marrow is termed

‘aplastic anemia.’ ’’ (P.C. 26B, p. 83, Add. 3(i)).

OSHA recognizes the usefulness and the technical reasons for

Jandl’s establishment of quantitative diagnostic criteria for various

non-malignant blood disorders and his ‘‘reassignment’’ of diagnoses

contained in the literature according to this classification scheme.

However, for convenience sake, the terais ‘‘pancytopenia’’ and

‘aplastic anemia’’ are used interchan

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Appendix — Industrial Union Dept., AFL-CIO v. American Petroleum Institute · 448 U.S. 607 | Frix