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

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~ Supreme Court US

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APPENDIX | MAY 18 1979

MICHAL RODAK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

Nos. 78-911 and 78-1036

INDUSTRIAL UNION DEPARTMENT, AFL-CIO,

Petitioner

=f)

AMERICAN PETROLEUM INSTITUTE, ET AL.

RAY MARSHALL, SECRETARY OF LABOR,

Petitioner

|

AMERICAN PETROLEUM INSTITUTE, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

PETITIONS FOR A WRIT OF CERTIORARI FILED DECEMBER 7,

1978 (NO. 78-911) AND DECEMBER 26, 1978 (NO. 78-1036)

CERTIORARI GRANTED FEBRUARY 21, 1979

Oe

“Se aaa Ywisntmae?

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

Nos. 78-911 and 78-1036

INDUSTRIAL UNION DEPARTMENT, AFL-CIO,

Petitioner

—V_ —

AMERICAN PETROLEUM INSTITUTE, ET AL.

RAY MARSHALL, SECRETARY OF LABOR,

Petitioner

—

AMERICAN PETROLEUM INSTITUTE, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

TABLE OF CONTENTS OF APPENDIX

Proceedings in the Court of Appeals and the Supreme Court *

Page

ETF aa ae) eRe IRN Cm er OTL mE Ne 1

Petition for Review Filed By The American Petroleum Insti-

tute In the Court of Appeals, No. 78-1253 (selected as a

representative example of the petitions filed) 000000000000... 12

Carcinogen Assessment Group, Preliminary Report on Popu-

lation Risk to Ambient Benzene Exposures (appended to

agency brief in court of appeals, June 8, 1978, as Adden-

yh ASTER BPE ERT OS ao (Es Melick Vee ene EBS NPE Bea 15

* The opinion of the court of appeals appears in the separate

appendix to the petition in No. 78-911. Copies of the briefs on the

merits filed in the court of appeals have been lodged with the Clerk.

ii TABLE OF CONTENTS OF APPENDIX

Page

Affidavit of Dr. Steven H. Lamm (appended to API’s reply

brief in the court of appeals, June 19, 1978, as Appendix

RRS ee A LL RTD EP A AE RO TR LNG ee AIR rd ome 30

Judgment of Court of panne 1 EES SARIE YL 2 Ret TRE SED Ro SP OT 37

ry: aE rs ss sepeagustibionsedecnenennes 38

Proceedings Before the Agency *

Excerpted Testimony of Drs. Douglas Smith and Laigo of

NIOSH, July 25, 1977 (Tr. 859-860) ..0....0..... ec eeeeeeeeeeeee 40

Excerpted Testimony of Dr, Richard Zeckhauser, July 29,

1977 (Tr. 2104-2112, 2141-2144, 2149-2154, 2156-2160,

2167-2169, 2180-2182, 2188-2190) 2... eee 40

Testimony of Dr. Howard Maibach, August 3, 1977 (Tr.

SCSI T CR A we Bee earner do Sead en Sy Gee ee EON UO 58

Excerpted Testimony of Dr. Richard Wilson, August 4, 1977

(Tr. 2701-2711, 2721-2723, 2732-2742, 2753-2755, 2772-

EERE IE RN R Oe EN E SE ETCEIN CR ON ORE 97

G. L. Conca and A. Maltagliati, “Study of the Percutaneous

Benzene Absorption,” Med Lavoro 46:194-198, 1955 (list

of references omitted) (OSHA translation) (Exh. 2-46) **.. 95

A. N. Cesaro, “Is Percutaneous Benzene Absorption Possi-

ble?”, Med Lavoro 37:151-156, 1946 (list of references

omitted) (OSHA translation) (Exh. 2-47) 2000000000... 101

J. Hanke, T. Dutkiewixz, and J. Piotrowski, “Absorption of

Benzene Through the Sxin in Man,” Med Pracy 12:413-426,

1961 (list of references omitted) (OSHA translation)

cos 5 Aaa a neee ds UPd orien Ue OY a reat NL FEES A ON a 107

Comments of the Council on Wage and Price Stability on the

Proposed Benzene Standard (Exh. 41-28) 00000000000... 121

Written Statement of Dr. Richard Zeckhauser (Exh.

RR RRIND, TALLER RENE AS has SERVER | Du SVR UREN AP AA PST CI aE 134

* The benzene standard and the Secretary’s statement of reasons

for adopting the standard, 43 Fed. Reg. 5918 (1978), appear in the

separate appendix to the petition in No. 78-911 at 34a-25la. The

materials printed in this appendix do not constitute the entire

administrative record compiled during the proceedings on the ben-

zene standard, now on file in the Clerk’s office. To facilitate its use,

the parties have lodged a typewritten index to the administrative

record with the Clerk.

** Diagrams and graphs in this and other studies were omitted

in printing but are available in the administrative record on file

with the Clerk.

———

TABLE OF CONTENTS OF APPENDIX

Written Statement of Dr. Howard I. Maibach, July 11, 1977

(omieiite omitted) CHEER. BRO) oon... cnc cscicciccescccessesscesseceise

Written Statement of Dr. Richard Wilson (Exh. 149.B)

DG ALI Lee Tr CA cd, A LD

(The following materials are from

the administrative record for the

amendment to the benzene standard )

Excerpted Cross-examination of Grover Wrenn, snd 23,

ge _ sR RENER LO ELCRN SUC FD AAaee Oe

Excerpted Testimony of Dr. Roger W. Strassburg (The B. F.

Goodrich Company), May 23, 1978 (Amend. Tr. 126-137,

iar ES Rtg MEAL ANE Lg inks SS 8 EL ASR SO Re ar

Excerpted Testimony of Mr. Roy N. Johnson (The General

Tire & Rubber Company), May 23, 1978 (Amend. Tr.

RE Ett iea TOaY TAPE UL Ss Me CALPE A WOR WANTS Lice: Oke USE RA ;

Rubber Manufacturers Association (“RMA”) Motion for

Stay, March 10, 1978, with attached OSHA statement

(omiates) CAmsené. Bum. SE-F-8) .......-2-.-....02..............-.......

Affidavit of James R. Sankey (The Goodyear Tire & Rubber

Company), March 8, 1978 (Amend. Exh. 32-F-2) 00000000...

Affidavit of Roger W. Strassburg (The B.F. Goodrich Com-

pany), March 9, 1978 (Amend. Exh. 32-F-2)

Affidavit of Robert E. Rehm (The General Tire & Rubber

Company), March 9, 1978 (Amend. Exh. 32-F-2)

Affidavit of Roy N. Johnson (The General Tire & Rubber

Company), March 9, 1978 (Amend. Exh. 32-F-2) 0...

Supplementary Affidavit of James R. Sankey (The Goodyear

Tire & Rubber ere March 28, 1979 (Amend. Exh.

EARNER ea ince Ay A APP OO Ob Se ERO Jane aT

Affidavit of Robert W. Laundrie (The General Tire & Rubber

Company), March 29, 1978 (Amend. Exh. 32-F-3)

Secretary of Labor’s Supplemental Opposition To Petitioners

Request For Stay Pending Judicial Review, April 12,

1978, cover page and page 67 (Amend. Exh. 32-A-3) .

Affidavit of N.A. Daigle (The Firestone Tire & Rubber

Company), April 13, 1978 (Amend. Exh. 32-F-4)

Second Supplemental Affidavit of Roger W. Strassburg (The

B. F. Goodrich Company), April 13, 1978) (exhibits

omitted) (Amend. Exh. 32-F-4) 0...

Amendment to Benzene Standard and Accompanying State-

ment of Reasons, 43 Fed. Reg. 27962 (June 27, 1978) _...

180

187

197

202

205

209

216

222

224

227

230

232

234

1 .

RELEVANT DOCKET ENTRIES

[Title of court omitted in printing]

AMERICAN PETROLEUM INSTITUTE ET AL.

v. OSHA ET AL., NO. 78-1253

Feb. 2, 1978 Petition for review

March 18, 1978 Order granting motion of Manufacturing

Chemists Association, The American Iron And Steel

Institute, and Chemical Specialties Manufacturers for

leave to intervene. (LRM) (Also filed in 78-1257).

March 21, 1978 Order granting motion of the Industrial

Union Department, AFL-CIO to intervene (Also filed in

78-1257).

April 18, 1978 Order continuing temporary stay entered on

3/13/78 pending disposition of petitions for review. Fur-

ther granting motion of Independent Petroleum Associa-

tion of America for leave to intervene. Further peti-

tioners’ motion to consolidate is granted.[*] Further the

motion to dismiss petition of review filed by Am. Petro-

leum in No. 77-1973, API, et al v. OSHRC is carried with

the case. Further the motion to correct captions in 78-

1253 and 78-1257 is granted.

June 22, 1978 Case argued.

June 23, 1978 Respondents’ letter dtd 6/22/78 with copy of

amendments to the benzene standard issued June 27,

1978. (CE) (Also filed in consolidated cases).

June 30, 1978 Petitioners’ letter dtd 6/30/78 with “pro-

ducer” petitioners’ supplemental memorandum which

addresses amendment to benzene standard and copy of

Federal Register notice announcing amendment. (CE)

(Also filed in consolidated cases).

[*] This order consolidated cases nos. 78-1253, 1257, 1486,

1676, 1677, 1707, 1745, and any other cases seeking review

of the benzene standard later transferred to the Fifth Circuit.

2

July 7, 1978 Order granting motion of petitioners, the Rub-

ber Manufacturers Association, Inc., et al and the Arm-

strong Rubber Company, et al. to filed amended petitions

for review. (JPC-CC-GBT).

July 11,1978 Filing Secretary of Labor’s motion to adjourn

present supplemental briefing schedule and to set new

briefing schedule on the merits of the amendment to the

benzene standard.

July 12,1978 Filing Response of Rubber Companies and Du

Pont in opposition to motion to adjourn briefing schedule,

etc.

July 14,1978 Order denying the Secretary of Labor’s motion

to adjourn present supplemental briefing schedule. Court

does not desire briefs designed to enable it to reach the

merits of the new standards. (CC) (Also filed in con-

solidated cases).

August 4, 1978 Filing Motion of Manufacturing Chemists

Association petitioner in No. 78-1988, to file amended

petition for review. (Filed in consolidated cases).

August 4, 1978 Filing contingent motion of Manufacturing

Chemists Association to defer briefing dates on the

merits of the liquid mixture exemption amendment to

the benzene standard. (Also filed in consolidated cases).

August 7, 1978 Filing motion of the American Iron and

Steel Institute to file amended petition for review in No.

78-1745. (Also filed in consolidated cases).

August 7, 1978 Filing motion of the American Iron and

Steel Institute to defer briefing on the merits of the

liquid mixture exemption amendment to the benzene

standard (Also filed in consolidated cases).

August 11, 1978 Order granting motion of the Manufactur-

ing Chemists Association to file an amended petition

for review; further order granting the contingent mo-

tion of Manufacturing Chemists Association to defer

briefing on the merits of the liquid mixture exemption

amendment to the benzene standard (CC) (Also filed

in consolidated cases).

3

August 11, 1978 Order granting motion of the American

Iron and Steel Institute to file amended petition for

review in No. 78-1745; further order granting motion

of American Iron and Steel Institute to defer briefing

on the merits of the liquid mixture exemption amend-

ment to the benzene standard. (CC) (Also filed in

consolidated cases).

August 14, 1978 Motion of E. I. Du Pont de Nemours & Co.

to file amended petition for review. (Also filed in con-

solidated cases).

August 18, 1978 Order granting motion of E.I. DuPont de

Nemours and Company to file an amended petition for

review.

October 5, 1978 Opinion and Judgment.

THE AMERICAN PETROLEUM INSTITUTE AND THE

NATIONAL PETROLEUM REFINERS, ET AL. v.

OSHA ET AL., NO. 78-1257

[The relevant docket entries for No. 78-1257 are the same

as'for No. 78-1253 except that the petition for review

was filed a day later (February 3, 1978) and the docket

for No. 78-1257 omits the entries for April 18 and July

7, 1978, shown above for No. 78-1253.]

THE RUBBER MANUFACTUERS ASSOCIATION, INC.,

ET AL. v. EULA BINGHAM, ET AL., NO. 78-1486

March 6, 1978 Petition to review and set aside an order of

the Assistant Secretary of Labor for OSHA filed [in the

Sixth Circuit, No. 78-3114].

March 9, 1978 Order granting motion of petitioners to

transfer this cause to the United States Court of Appeals

for the Fifth Circuit.

[After transfer, the Fifth Circuit renumbered the case

No. 78-1486 and made the following entries :]

March 13,1978 Filing order of the Sixth Circuit transferring

their docket No. 78-3114 to the 5th Circuit.

4

April 11, 1978 Order granting motion of the Industrial

Union Department, AFL-CIO, to intervene. (LRM)

(Also filed in 78-1676, 78-1677, and 78-1707).

May 5, 1978 Filing respondents’ motion to reschedule argu-

ment. Denied JPC.

June 22, 1978 Case argued.

June 23, 1978 Filing respondents’ letter dtd 6/22/78 with

copy of amendments to the benzene standard issued June

27, 1978. (CE) (Also filed in consolidated cases).

June 27, 1978 Filing motion of petitioners in Nos. 78-1486

and 78-1677 to file amended petitions for review.

June 30, 1978 Filing petitioners’ letter dtd 6/30/78 with

“producer” petitioners’ supplemental memorandum which

addresses amendment to benzene standard and copy of

Federal Register Notice announcing amendment. (CE)

(Also filed in consolidated cases).

July 7, 1978 Order granting motion of petitioners, the

Rubber Manufactuers Association, Inc, et al, and the

Armstrong Rubber Company et al, to file amended peti-

tions for review. (JPC-CC-GBT) (Also filed in 78-1677).

July 11,1978 Filing Secretary of Labor’s motion to adjourn

present supplemental briefing schedule, and to set new

briefing schedule on the merits of the amendment to the

benzene standard.

July 14,1978 Order denying the Secretary of Labor’s motion

to adjourn present supplemental briefing schedule. Court

does not desire briefs designed to enable it to reach the

merits of the new standards. (CC).

July 24, 1978 Order granting motion of Chemical Speciali-

ties Manufacturers Association for leave to intervene

(CC).

August 4, 1978 Filing motion of Manufacturing Chemists

Association, petitoner in No. 78-1988, to file amended

petition for review. (Also filed in consolidated cases).

August 4, 1978 Filing contingent motion of Manufacturing

Chemists Association to defer briefing dates on the merits

of the liquid mixture exemption amendment to the ben-

zene standard. (Also filed in consolidated cases).

5

August 7, 1978 Filing motion of the American Iron and

Steel Institute to file amended petition for review in No.

78-1745. (Also filed in consolidated cases).

August 7, 1978 Filing motion of American Iron and Steel

Institute to defer briefing on the merits of the liquid

mixture exemption amendment to the benzene standard.

(Also filed in consolidated cases).

August 11, 1978 Order granting motion of the Manufactur-

ing Chemists Association to file an amended petition for

review; further order granting the contingent. motion of

Manufacturing Chemists Association to defer briefing on

the merits of the liquid mixture amendment to the ben-

zene standard. (CC) (Also filed in consolidated cases).

August 11, 1978 Order granting motion of the American

Iron and Steel institute to file amended petition for re

view in No. 78-1745; further order granting motion

of American Iron and Steel Institute to defer briefing

on the merits of the liquid mixture exemption amendment

to the benzene standard. (CC) (Also filed in consolidated

cases).

August 18, 1978 Order granting motion of E.I. duPont de

Nemours and Company to file an amended petition for

review. (Also filed in consolidated cases).

October 5, 1978 Opinion and Judgment.

E. Il. DU PONT DE NEMOURS & CO. v. OSHA ET AL.,

NO. 78-1676

March 10, 1978 Petition for review of an order of the Occu-

pational Safety and Health Administration, U.S. Depart-

ment of Labor, received March 10, 1978, filed [in the

Third Circuit, No. 78-1290]. (10 cc) Service attached.

March 31, 1978 Order (Aldisert and Adams, C.J.) granting

the motions by petitioner for expedited consideration of

“petitioner’s Motion for Transfer” and to transfer Peti-

tion for Review to the United States Court of Appeals

for the Fifth Circuit filed.

6

[After transfer, the Fifth Circuit renumbered the case

No. 78-1676 and made the following entries: ]

April 3, 1978 Filing Order of the Third Circuit transferring

their docket No. 78-1290 to the 5th Circuit.

April 11, 1978 Order granting motion of the Industrial

Union Department, AFL-CIO, to intervene. (LRM).

(Also filed 78-1486, 78-1677 & 78-1707).

May 5, 1978 Filing Respondents’ motion to reschedule argu-

ment. Denied JPC.

June 22,1978 Case argued.

June 23, 1978 Filing respondents’ letter dtd 6/22/78 with

copy of amendments to the benzene standard issued

June 27, 1978. (CE) (Also filed in consolidated cases).

June 30, 1978 Filing petitioner’s letter dtd 6/30/78 with

“producer” petitioners’ supplemental memorandum which

addresses amendment to benzene standard and copy of

Federal Register Notice announcing amendment. (CE)

(Also filed in consolidated cases).

July 11,1978 Filing Secretary of Labor’s motion to adjourn

present supplemental briefing schedule, and to set new

briefing schedule on the merits of the amendment to the

benzene standard.

July 14,1978 Order denying the Secretary of Labor’s motion

to adjourn present supplemental briefing schedule. Court

does not desire briefs designed to enable it to reach the

merits of the new standards. (CC) (Also filed in consoli-

dated cases).

August 4, 1978 Filing motion of Manufacturing Chemists

Association, petitioner in No. 78-1988, to file amended

petition for review. (Also filed in consolidated cases).

August 4, 1978 Filing contingent motion of Manufacturing

Chemists Association to defer briefing dates on the merits

of the liquid mixture exemption amendment to the ben-

zene standard. (Also filed in consolidated cases).

7

August 7, 1978 Filing motion of the American Iron and

Steel Institute to file amended petition for review in No.

78-1745. (also filed in consolidated cases).

August 7, 1978 Filing motion of American Iron and Steel

Institute to defer briefing schedule on the merits of the

liquid mixture exemption to the benzene standard. (Also

filed in consolidated cases).

August 11, 1978 Order granting motion of the Manufactur-

ing Chemists Association to file an amended petition for

review; further order granting the contingent motion

of Manufacturing Chemists Association to defer briefing

on the merits of the liquid mixture exemption amend-

ment to the benzene standard (CC) (Also filed in con-

solidated cases).

August 11, 1978 Order granting motion of the American

Iron and Steel Institute to file amended petition for re-

view in No. 78-1745; further order granting motion of

American Iron and Steel Institute to defer briefing on

the merits of the liquid mixture exemption amendment

to the benzene standard (CC) (Also filed in consolidated

cases).

August 18, 1978 Order granting motion of E.I. Du Pont de

Nemours & Co. to file an amended petition for review.

(Also filed in consolidated cases).

October 5, 1978 Opinion and Judgment.

THE ARMSTRONG RUBBER COMPANY AND

UNIROYAL, INC. v. EULA BINGHAM, ET AL., NO. 78-1677

March 6, 1978 Filed Petition for review [in Second Circuit

No. 78-4034].

March 27, 1978 Filed Order granting motion to transfer

to the United States Court of Appeals for the Fifth

Circuit.

[After transfer, the Fifth Circuit renumbered the case

No. 78-1677 and made the following entries: ]

8

April 3,1978 Filing Order of the Second Circnit transferring

their docket No. 78-4034 to the 5th Circuit.

[The remainder of the relevant docket entries made by

the Fifth Circuit in No. 78-1677 are identical to those

beginning April 11, 1978, by the Fifth Circuit in No.

78-1676. ]

INDEPENDENT PETROLEUM ASSOCIATION OF

AMERICA v. OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, U.S. DEPARTMENT OF LABOR,

ET AL., NO. 78-1707

1978 Petition for review filed.

[The remainder of the relevant entries for No. 78-1707

are identical to those shown for No. 78-1676 beginning

with the entry for April 11, 1978, with the exception

that the docket in No. 78-1707 omits the entry for July

11, 1978.]

AMERICAN IRON AND STEEL INSTITUTE, ET AL. v.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRA-

TION, U.S. DEPARTMENT OF LABOR, ET AL., NO.

78-1745

April 3, 1978 Petition for Review of an order of the Occupa-

tional Safety and Health Administration United States

Department of Labor, received April 3, 1978, filed [in the

Third Circuit as No. 78-1388]. (6 cc) Service attached.

April 7, 1978 Order (Aldisert and Adams, C.J.) granting

petitioners’ motion for transfer of Petition for Review to

the United States Court of Appeals for the Fifth Circuit,

filed.

[After transfer, the Fifth Circuit renumbered the case

No. 78-1745 and made the following entries:]

April 10,1978 Filing Order of the Third Circuit transferring

their docket no. 78-1388 to the 5th Circuit.

{The remainder of the relevant entries for No. 78-1745

are identical to those shown for No. 78-1676, beginning

with the eutry for May 5, 1978, with the exception that

the docket in No. 78-1745 omits the entry for July 11,

1978. ]

9

MANUFACTURING CHEMISTS ASSOCIATION

v. OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, ET AL., NO. 78-1988

March 30, 1978 Petitioner’s petition for review of an order

of the Occupational Safety and Health Administration

(m-30) [filed in the United States Court of Appeals for

the District of Columbia Circuit, No. 1287].

May 5, 1978 Per curiam order granting petitioner’s motion

to transfer this case to the Fifth Circuit; Bazelon and

Leventhal, CJ’s.

[After transfer, the Fifth Circuit renumbered the case

No. 78-1988 and made the following entries :]

May 8, 1978 Filing order of the District of Columbia Circuit

transferring their docket No. 78-1287 to the Fifth Circuit.

June 22,1978 Case argued.

June 30, 1978 Filing petitioners’ letter dtd 6/30/78 with

“producers” petitioners’ supplemental memorandum

which addresses amendment to benzene standard and

copy of Federal Register Notice announcing amendment.

(CE) (Also filed in consolidated cases.)

July 14,1978 Order denying the Secretary of Labor’s motion

to adjourn present supplemental briefing schedule. Court

does not desire briefs designed to enable it to reach the

merits of the new standards. (CC) (Also filed in con-

solidated cases).

[The remainder of the entries for No. 78-1988 are identi-

cal to those beginning with August 4, 1978, for No. 78-

1676, except that the docket for No. 78-1988 omits the

entry for August 11, 1978, granting motion of AISI to

file amended petition and to defer briefing on amend-

ment. ]

10

INDEPENDENT PETROLEUM ASSOCIATION

OF AMERICA v. OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION ET AL., NO. 78-1989

April 4, 1978 Petitioners’ petition for review of an order of

the OSHA (m-4) [filed in the United States Court of

Appeals for the District of Columbia Circuit, No. 1308].

May 3, 1978 Per Curiam Order granting Petitioners’ motion

for transfer and this case is transferred to the Fifth

Circuit: Bazelon and Leventhal, CJ’s.

[After transfer, the Fifth Circuit renumbered the case

No. 78-1989, and made the following entries:]

May 8, 1978 Filing Order of the District of Columbia Cir-

cuit transferring their docket no. 78-1308 to the 5th

Circuit.

June 22,1978 Case argued.

July 14,1978 Order denying the Secretary of Labor’s motion

to adjourn present supplemental briefing schedule. Court

does not desire briefs designed to enable it to reach the

merits of the new standards. (CC) (Also filed in con-

solidated cases).

August 18, 1978 Order granting motion of E.I. Du Pont de

Nemours & Co. to file an amended petition for review.

(Also filed in consolidated cases)

October 5,1978 Opinion and Judgment.

November 1, 1978 Order consolidating this appeal with 78-

1253, et al (CC).

INDUSTRIAL UNION DEPARTMENT, AFL-CIO v.

DR. EULA BINGHAM, ET AL., NO. 78-2642

July 11, 1978 Petitioner’s petition for review of order of

the Dept. of Labor (p-10) [filed in the United States

Court of Appeals for the District of Columbia Circuit,

No. 1644].

July 26, 1978 Per curiam order granting petitioner’s motion

to transfer and this case is to be transferred to the

USCA for the 5th Circuit as promptly as the business

of office permits; CJ Wright and McGowan, CJ.

POSTER GS see

11

[After transfer, the Fifth Circuit renumbered the case

No. 78-2642 and made the following entries :]

August 1, 1978 Filing order of the District of Columbia

Circuit transferring their docket no. 78-1644 to the

5th Circuit.

August 18, 1978 Order granting motion of E. I. Du Pont de

Nemours & Co. to file an amended petition for review.

(Also filed in consolidated cases).

October 5,1978 Opinion and judgment.

November 1, 1978 Order consolidating this appeal with 78-

1253 et al (CC).

THE AMERICAN PETROLEUM INSTITUTE AND THE

NATIONAL PETROLEUM REFINERS ASSOCIATION, ET

AL. v. OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION UNITED STATES DEPARTMENT OF

LABOR, ET AL, NO. 78-2779

August 18,1978 Petition for review filed.

October 5,1978 Opinion and judgment.

THE ADHESIVE AND SEALANT COUNCIL, INC.

v. EULA BINGHAM, ET AL, NO. 78-3023

[This case was filed in the Fourth Circuit on August 18,

1978, and transferred to the Fifth Circuit on September

11, 1978. The record does not include the Fourth Circuit’s

docket entries but does disclose the filing and transfer

dates. After transfer, the Fifth Circuit renumbered the

case No. 78-3023, and made the following docket entries :]

Sept. 18, 1978 Filing Order of the Fourth Circuit transfer-

ring their docket no. 78-1544 to the Fifth Circuit.

October 5,1978 Opinion and Judgment.

November 1, 1978 Order consolidating this appeal with 78-

1253 et al. (CC).

12

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-1253

THE AMERICAN PETROLEUM INSTITUTE, ET AL.,

PETITIONERS

Vv.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

RESPONDENTS

PETITION FOR REVIEW

Pursuant to Section 6(f) of the Occupational Safety

and Health Act of 1970, 29 U.S.C. § 655(f), The Ameri-

ean Petroleum ‘Institute, the National Petroleum Re-

finers Association on behalf of their respective members,

and American: Petrofina, Incorporated, Cities Service

Company, Continental Oil Company, Delta Oil Company,

Exxon Corporation, Gulf Oil Company, Husky Oil Com-

pany, Marathon Oil Company, Mobil Oil Corporation,

Phillips Petroleum Company, Shell Oil Company, South

Hampton Oil Company, Standard Oil Company (Indi-

ana), The Standard Oil Company (Ohio), Sun Oil Com-

pany of Pennsylvania, Sun Oil Company of Delaware,

Texaco Inc., Union Oil Company of California, U.S.A.

Petrochem Corporation, and Williams Pipe Line Com-

pany, hereby challenge the validity of, and petition this

Court for review of, the Permanent Standard for Oc-

cupational Exposure to Benzene released by the Occupa-

tional Safety and Health Administration, Department of

Labor, on February 2, 1978.

The Permanent Standard for Occupational Exposure

to Benzene challenged by this Petition supplants and

replaces the Emergency Temporary Standard for Occu-

pational Exposure to Benzene (42 Fed. Reg. 22516) pre-

viously challenged by the same petitioners in American

Petroleum Institute, et al. v. OSHA, et al., No. 77-1973,

presently pending before this Court.

13

By this Petition, the above captioned petitioners also

challenge OSHA’s procedural regulations dealing with the

official time for issuance of agency actions (29 C.F.R.

§ 1911.18(d), 42 Fed. Reg. 65166) on the ground that

such regulations may be invalid and inconsistent with

the D.C. Circuit’s opinion in Industrial Union Dept.

AFL-CIO, et al. v. Bingham, et al., Nos. 77-1395, 77-

1516 which retransferred API, et al. v. OSHA, et al.

(No. 77-1973) to this Court.

Respectfully submitted,

Gene W. Lafitte

J. Berry St. John, Jr.

John M. Wilson

of

Liskow & LEWIS

50th Floor—One Shell Square

New Orleans, Louisiana 70139

(504) 581-7979

Edward W. Warren

Robert F. Vanvoorhees

Arthur F. Sampson

of

KIRKLAND, ELLIS & ROWE

1776 K Street, N.W.

Washington, D.C. 20006

(202) 857-5000

Counsel for Petitioners

February 2, 1978.

14

[The following document was appended to

the agency brief in the court of appeals]

CARCINOGEN ASSESSMENT GROUP’S

PRELIMINARY REPORT ON

POPULATION RISK TO AMBIENT

BENZENE EXPOSURES

This document is being released by

EPA for external review

Roy E. ALBERT, M. D.

Chairman

wo ow ais esi

aed

~~ = """PARTICIPATING MEMBERS

Elizabeth L. Anderson, Ph. D.

I. Nathan Dubin, M. D.

Richard N. Hill, M.D., Ph. D.

Robert E. McGaughy, Ph. D.

Lakshmi C. Mishra, Ph. D.

Ruth Pertel, Ph. D.

Wade T. Richardson, J. D.

Todd W. Thorslund, Se. D.

STAFF ASSISTANT

Claudia Slacik

sia aol LS re ote

15

[Table of Contents Omitted in Printing]

PRELIMINARY ESTIMATE OF POPULATION RISK

TO AMBIENT BENZENE EXPOSURES

I Summary

There is substantial epidemiological evidence that ben-

zene is a human leukemogen. However, no validated ani-

mal model has yet been developed for benzene as a car-

cinogen. There are several large series of case reports

indicating a high risk of leukemia in individuals who

developed aplastic anemia consequent to benzene expo-

sure. In addition there are a number of epidemiological

studies in the rubber and shoe industries that demon-

strate an excess risk of leukemia. From the standpoint

of making quantitative estimates of the leukemia risk

- “associated with current general population exposures to

benzene in the United States there are only two epi-

demiological studies that provide some estimates of both

exposure to benzene and data on the occurence of leu-

kemia. These studies are by Infante (3) and by Ott,

et al. (5).

The Infante study, which showed an excess incidence

ia, is not yet completely analyzed. Hence, some

(ptions have had to be made about the average dura-

and magnitude of exposures. For this reason, this

w#eport should be considered as preliminary. The Ott

f study indicated no excess leukemia risk with relatively

- well-documented exposures.

The results of the Infante study were used as the basis

for an extrapolation of the leukemia risk to the low levels

of general population exposure, which averages one part

per billion (4). A linear non-threshhold model was used

for the extrapolation; such a model is expected to give

an upper limit to the estimated risk. Using this extra-

polation model, and using the leukemia rates observed

in the cohort of workers exposed to benzene over a period

of about 30 years (in the Infante study), we estimated

that the number of cases of acute myelogenous and my-

onocytic [2] leukemia per year in the general population

\

16

due to ambient atmospheric benzene is somewhere be-

tween 30 and 80 cases. The lifetime risk to an individual

continually exposed to benzene at a level of 1 ppb is

estimated to be between 10° and 2.5 x 10°, depending on

which exposure assumptions are made in the Infante

study. The risk from individual sources of benzene emis-

sions ranges from about 10° to 5 x 10°. The Ott study,

which reported no excess leukemia risk, is consistent with

the Infante study on statistical grounds given their rela-

tive exposures. However, the negative results of the Ott

study suggest that the level of calculated risk in the

general population is not likely to be higher than 10°

to 2.5 x 10°, but it could be lower.

[3] II Introduction

The Carcinogen Assessment Group (CAG) has been

asked by the Office of Air Quality Planning and Stand-

ards (OAQPS) to estimate the carcinogenic risk to the

United States population of ambient benzene concentra-

tions. This type of information is useful in judging the

overall contribution of benzene emissions to the national

rates of cancer mortality, and will be used by OAQPS

in the decision whether to regulate benzene.

As the primary basis for this estimation the CAG is

using the Infante (Infante, et al. 1977) mortality study

of workers exposed to benzene in the production of a

natural rubber cast film product. The reasons for this

choice are: (1) the worker exposures are said to have

_been almost exclusively restricted to benzene, since it is

used throughout the plant as the principal solvent in all

major processes; (2) the individuals in the cohort all

worked before 1950 and were followed until 1975, thus

allowing long latency diseases to be observed and (3)

acute myelogenous leukemia was observed, which is the

same cell type of leukemia observed in other studies

where workers have had known benzene exposures. The

disadvantages of relying on this study for determining

general population risks are (1) the authors essentially

give no estimate of worker exposures except to say that

the levels were less than the prevailing recommended oc-

17

cupational limits at the time various monitoring surveys

were made; (2) the cohort studied actually worked at

two separate plants (Akron and St. Mary’s, Ohio). Air

monitoring information in the former plant is almost

non-existent (Baier, 1977), and therefore the exposure

to half of the members of the cohort is almost completely

unknown. However, it is known (Young, 1977) that the

crude rates (leukemia cases/total people in the cohort)

are similar in the two [4] lecations; (3) Warren et al.

(1977) have claimed that over 400 workers known to be

exposed to low benzene levels were deliberately excluded

from the cohort.

In spite of these difficulties the Infante study is the

only one currently available which reports an excess rate

of leukemia among benzene-exposed populations. Another

occupational study (Ott, et al. 1977) of workers exposed

to benzene has documented the exposures relatively well

and reports no excess leukemia risk. The risk estimates

based on Infante’s study are used to calculate the num-

ber of cases expected in the cohort examined by Ott, et

al. If this is not significantly different than the observed

number of cases, the estimates are not grossly in error.

A more complete evaluation of the Infante study will be

possible after the authors have made a final evaluation

of their data. ,

III. Description of Infante Study

In a retrospective study of mortality among a cohort

of 748 white male workers in two Ohio plants manufac-

turing a natural rubber cast film product, Infante, et al.

(1977) observed a statistically significant higher rate of

leukemia than both of two control groups. The leukemia

mortality rate was 5.06 times higher than the general

U. S. white male population standardized for age and

time period of the cohort exposure, and 4.74 times higher

than a cohort of 1447 white males employed at an Ohio

fibrous-glass construction products factory. These results

were based on a 75% follow-up of the vital status of the

workers. A total of 160 deaths were observed and of

these there were 7 leukemia deaths four of which were

18

acute lyelogenous, one chronic myelogenous, and two

monocytic leukemia. The worker exposure information

is discussed in IV B below.

[5] IV. Analysis of Myelogenous and Monocytic Leu-

kemia Risks due to Benzene Exposures

A. General Approach

As was noted in the benzene health document (Gold-

stein, et al. 1977), very little information exists that

can be utilized to obtain a dose response relationship be-

tween benzene and leukemia in humans or animals.

However, if a number of simplifing assumptions are

made, it is possible to construct a crude dose response

model whose parameters can be estimated using vital

statistics, the Infante study, historical benzene workplace

standards, and a recent environmental benzene exposure

study. (Mara and Lee, 1977)

We assume that for low exposures the lifetime prob-

ability of death from leukemia may be represented by

the linear equation

P=a+ px

where a is the rate in the absence of benzene exposure

and x is the average lifetime exposure to atmospheric

benzene expressed in ppm. The term § is the change in

the leukemia rate for each increase of one ppm of ben-

zene in the air.

From the Infante, et al. study the relative risk of

leukemia for benzene workers compared to the general

population was obtained. We will denote this ratio as R

and niake the assumption that

R= R,=a+ B(x, +x,)

R, a+ BX,

where x, is the exposure of the general population to

benzene and x, is the industrial exposure to benzene.

19

[6] From our two assumptions we have the two linear

equations in two unknowns of the form

RR,=a~+ Bx, + BX,

R,=a~+ Bx,

so that

B=R, (R-1) /x,

and 8 x, is the average lifetime risk due to ambient

benzene exposures.

To utilize this technique to predict risk it is necessary

to obtain estimates of R,, R, X,, and X.. The estimation

of each of these quantities is discussed in a separate

section.

B. Estimation of Relative Risk R

Infante, et al. (1977) established as a lower bound a

total of seven acute myelogenous or monocytic cases of

leukemia in their studied cohort of 748 members. They

calculated an expected value of 1.3831 cases for all forms

of leukemia. From the 1971 U.S. Vital Statistics (U. S.

DHEW, 1971) we note that of 7,564 cases of leukemia

in white males, a total of 3,260 or 43% were myelogen-

ous or monocytic. Thus an estimate of the relative risk

for acute myelogenous and monocytic leukemia in white

males is

7

R= 1.3831 x0.43=11.77

[7] C. ESTIMATION OF BACKGROUND LEUKEMIA

RATE R,

The lifetime risk to a disease can be estimated from

age-specific deaths rates in the following manner. We

assume that during different segments of a lifespan the

total and disease specific death rates are constant. we

define the following terms:

aj=death rate due to a specific disease during the jt life-

time segment.

aj+ \j=total death rate during jt* lifetime segment.

S; length of j* lifetime segment.

=>

20

P,,=- ., = = probability of death due to the specific diseaes

4 aj*AJ given that death occurred during the jt life-

time segment.

P,,=1-e-(aj +Aj)S,= probability of death during the j®

lifetime segment given survival up

to the start of the jt lifetime seg-

ment.

Posed 1-P,,.) = probability of survival until the start of

k= the j' lifetime segment.

If we assume that the entire lifetime is divided into

m mutually exclusive segments then by definition P;,—1,

P.m==1 and the entire lifetime probability of the disease is

m

P=> P,; P.; Ps;

j=1

[8] The age specific rates for white males for myelo-

genous and monocytic leukemia were estimated from the

total leukemia rates by multiplying the entries in Table

I-13, disease categories 204-207, white male (U. S.

DHEW, 1971) by 0.43. This gives the entries j} shown

in Table 1. The total mortality aj + Aj is also obtained

from table I-13 and is shown in Table 1. The other terms

are calculated by the given definitions and the final result,

the lifetime risk of white males exposed to background

levels of benzene is found to be

R, =0.38987 x 102

TABLE 1

[9]

COMPUTATION OF LIFETIME RISK OF MYELOGENOUS-MONOCYTIC LEUKEMIA

.0000072_

.0000659

.0001348

.0000920

.0000983

.0001287

.0002287

.0005061

.00095 10

.0011108

0005752

Xs

.0038987

aj aj + Aj

Sj

Age

Intervals

rE

.9816

2

9785

9745

—

9621

9473

.9184

.8556

.7268

.5078

- -+- #+¢§ = + +

.3940x10-*

1,852.8

73

1.68

1.38

.2111x10"

79.6

1-4

5-14

15-24

25-34

35-44

45-54

55-64

65-74

74-85

85+

4042x10-

3407x100"

40.5

127.6

155.4

309.6

10

10

10

10

10

10

10

10

.7445x10

95

1.03

1.38

2.58

6.41

15.57

31.43

43.65

.6628x10-

.3049x10-

4457x107

.3640x10-2

708.7

1,632.0

3,586.1

.15058

30135

53919

3928x107

4342x107

4057x107

7,747.6

17,758.1

.2340

.2458x10

R, =0.0038987

22

[10] D. ESTIMATE OF AVERAGE AMBIENT BEN-

ZENE EXPOSURE

In a recent EPA contractor report (Mara and Lee,

1977), data relating to benzene exposure in the United

States was compiled. For each of several annual average

concentration ranges, the population exposed to seven

categories of benzene emissions was calculated. The seven

categories were: (1) chemical manufacturing, (2) coke

ovens, (3) gasoline service stations (separately for peo-

ple using self-service stations and for people living in the

vicinity of the stations), (4) petroleum refineries, (5)

solvent operations, (6) storage and distribution of ben-

zene and (7) urban exposures related to automobile tail-

pipe and gasoline tank emissions. The general procedure

used was to start with production data for benzene or its

major products, estimate emission factors (benzene re-

lease per kg of end product), apply an appropriate air

dispersion model to obtain concentrations as a function of

distance from the source, and to use population density

information for each location to calculate the number of

people exposed to each concentration range. Air monitor-

ing data were used whenever it was available. The re-

sults are summarized in Table 2. From this data one

can calculate that the annual average exposure of an indi-

vidual to ambient benzene from all sources is 1.03 ppb.

TABLE 2.

[11]

SUMMARY OF POPULATIONS EXPOSED (THOUSANDS) TO ATMOSPHERIC BENZENE EMISSIONS ¢

Gasoline Stations

Urban

Solvent

Operations Exposures

Petroleum

Vicinity Refineries

Coke Self

Mfg. Ovens Service

Chem.

Total

Population

(ppb)

Concen-

trations

0.042

0.50

37,000

7,497 15,726 87,000 6,529 208 68,337

45,353

37,000

185,297

23

31,000

301,684

0.5404 0.042 0.7627 0.5112 0.5465 0.8989

2.0885

0.7514

Population

Weighted

Averages

(ppb)

Average exposure to the population of 220 million is 0.7514 x 301,684=1.030 ppb

220,000

* Adapted from Mara and Lee (1977).

24

[12] E. ESTIMATION OF AVERAGE OCCUPATION-

AL EXPOSURE

Information about the plant benzene levels is contained

in the Appendix to the testimony of Baier at the OSHA

benzene hearings (Baier, 1977).

From the opening of the factory in 1940 until 1946,

no monitoring records were available. Following the in-

stallation of new ventilation equipment in 1946, a survey

showed that “most areas” in the plant ranged from 0 to

15 ppm and that all areas were less than the maximum

safe limit of 100 ppm which prevailed at that time. From

this information, one can guess that the average expo-

sure to all people in the plant before 1946 is probably

not much more than 100 ppm, and not less than 15 ppm.

Benzene levels were monitored after 1946 at various

plant locations but they were all instantaneous samples

and no reliable information is available about how many

man-hours were spent at those locations or whether pro-

tective masks were worn. These are case reports of ex-

posures of 1000 ppm for short time intervals. Since the

average levels were generally close to the occupational

standard, we will make the assumption that the average

worker exposure was the same as the prevailing recom-

mended occupational limits. These are tabulated below

along with the time weighted average for the 36 years

of the total exposure period.

Time Average Time-Weighted

Interval Exposure( ppm) Average(ppm)

1940-46 (7) 100-15

1947 (1) 50 39.9-23.3

1948-56 (9) 35

1957-68 (12) 25

1969-1975 (7) 10

[13] The actual levels to which the workers were ex-

posed was a subject of heated debate at the OSHA ben-

zene hearings. The CAG would like to see a realistic es-

timate of the population weighted average exposure and

its uncertainty limits. The time-weighted averages for

occupational exposure must be converted to a continuous

exposure life-time basis. It will be assumed that the

25

maximum likely lifetime exposure would result if a work-

er entered the factory in 1940 and was exposed to 82 ppm

for 10 years and 23.7 ppm for 25 years (which is equiva-

lent to an average of 40.36 ppm for 35 years) and the

least likely exposure would occur if a worker started in

1950 and was exposed to 23.7 ppm for 25 years. There-

fore the equivalent continuous lifetime exposures are:

High estimate: 40.36 x 240 x 1x 35=4.4 ppm

865 3 70

Low estimate: 23.7 x 240 x 1x 25=1.8 ppm

865 3 70

[14] F. CONCLUSIONS

Given the following derived estimates of our para-

meters of interest:

R =11.77

R, = 0.38987 x 10~

X, =1.030 x 10-** ppm

X,=1.8 to 4.4 ppm

the parameter @ and the resulting lifetime risks and ex-

pected number of acute myelogenous and monocytic leu-

kemia deaths can be derived in_the manner previously

indicated. In table 3 the average risk rates and expected

number of cases per lifetime and per year are shown for

total benzene exposure. In Table 4 the total rates and

cases are subdivided by source of exposure. We note that

about 85% of the total number of cases are directly re-

lated to the use of gasoline.

It should be emphasized that due to the very crude

methods that were necessarily employed in the estima-

tion of benzene exposures by both CAG for Infante’s

cohort and Mara and Lee (1977) for the U.S. population,

the estimates could easily be in error by several orders

of magnitude. This is true even if the form of the mathe-

matical response model used is a correct rescription of

benzene induced leukemia, which is also open to question.

However, an additional independent negative study of

workers exposed to benzene (Ott, et al. 1977, Dow Chemi-

26

cal Company) can be used to ascertain whether our

model, based on Infante’s data, grossly over-estimates

the leukemia risk to benzene exposure. They reported

the mortality [15] experience of a cohort of workers

whose exposure to benzene had been carefully documented

since 1940. No excess of leukemia was observed in the

cohort by 1973. Since the prediction model was previous-

ly discussed based upon workers with highly uncertain

exposures, it was felt to be important to estimate the

number of leukemia cases we might expect in Dow’s

cohort if our model was valid.

Using Dow’s exposure estimates and expected number

of cases for its workers, it was found that our model

predicted from 1.43 to 1.74 cases of leukemia where one

case was actually observed. Since this estimate is well

within the limits of normal statistical variability we can

be confident in claiming that the Dow study does not of-

fer any evidence upon which to question the validity of

our model.

of

Expected Number

Cases/Year

Lifetime

Exp. Leukemia

Cases in U.S.

2.177 ..

5,436

TABLE 8

TOTAL U.S. POPULATION RISKS TO BENZENE

Average Risk

BX,

.9897x10-"

.2471x10~

.4149x107/X,

.9609x107

.2399x10"

B

4.4 ppm

1.8 ppm

(X,)

Industrial

Exposure

* This represents about 1.2% of cases observed in 1971.

[16]

High

Low

1.8

499

211

37

81

2,456

**5 449

X,

85

15

865

32

1.2

982

Lifetime Expected

200

of Leukemia Cases

X,=4.4

**2,180

X,=1.8

5.00x10°°

1.30x10-°

1.01x10*

1.83x10-°

1.23x10-°

1.35x10°

2.16x10-°

Risk Rates

TABLE 4.

X,=4A4

2.x10°

5.19x10*

4.04x10°

7.33x10-°

4.91x10°°

5.41x10-°

8.64x10°

9.98

16.30

37.00

22

118.00

6.60

Population

Exposed

220.00*

113.69

* Does not sum due to multiple exposure.

Average

Level of

Exposure ppb. Millions

2.0885

5404

.042

.7627

5112

5465

8989

1.030

EXPOSURE FOR DIFFERENT SOURCES ~-

Source

of

Exposure

** This represents about 1% of the number of cases expected in a lifetime assuming current incidence

rates.

RISK AND LIFETIME EXPECTED NUMBER OF LEUKEMIA CASES DUE TO BENZENE

Self-Ser. Gas

Vicinity of

Gas Stations

Petroleum

Refineries

Solvent

Operations

Urban

Exposures

Coke Ovens

Stations

Chem. Mfg.

Total

[17]

29

[18] REFERENCES

1. Baier, E. J. “Statement of the National Institutes of

Occupational Safety and Health’, Exhibit 64A,

OSHA Benzene Hearings, July 19-Aug. 10, 1977.

2. Goldstein, B. D., C. A. Snyder, R. Snyder, R. and

S. R. Wolman, “Review of Benzene Toxicity,” pre-

pared for EPA, August 18, 1977.

3. Infante, P. F., J. K. Wagoner, R. A. Rinsky, R. J.

Young, ‘Leukemia in Benzene Workers,” Lancet, p.

76-78, July 9, 1977.

4. Mara, S. J. and Lee, S.S., “Human Exposures to At-

mospheric Benzene” EPA contract 68-01-4314 with

Stanford Research Institute, September, 1977.

5. Ott, M. G., J.C. Townsend, W. A. Fishbeck, R. A.

Langner, “Mortality Among Individuals Occupation-

ally Exposed to Benzene” Exhibit 154,,OSHA Ben-

zene Hearings, July 19-August 10, 1977.

6. U.S. Department of Health, Education and Welfare.

“Vital Statistics of the United States, 1971, Volume

II-Mortality, Part A’, Superintendent of Documents,

U.S. Government Printing Office, Stock No. 017-022-

00378-3.

Warren, E. W., R. F. Van Voorhee, A. F. Sampson,

“Post Hearing Brief of API, NPPA, and Individual

Member Companies Regarding the Proposed Revised

Permanent Standards for Occupational Exposure to

Benzene”, OSHA Docket No. H-059 September 22,

1977.

Young, R. J. National Institute of Occupational Safe-

ty and Health, Personal Communication, October,

1977.

39

[The following document was attached to the reply brief

of the American Petroleum Institute in the Court of

Appeals]

AFFIDAVIT OF DR. STEVEN H. LAMM

I, Dr. Steven H. Lamm, being duly sworn, do state

and depose as follows:

1. I was graduated from the University of Southern

California in 1968 with the degree of Doctor of Medi-

cine. From 1968 to 1969, I held a rotating internship

at the University of-Oregon. From 1969 to 1970, I held

a residency in pediatrics at the Montreal Children’s Hos-

pital. From 1970 to 1972, I was employed by the United

States Public Health Service as an epidemiologist at-

tached to the Connecticut State Department of Health.

From 1972 to 1973, I was Senior Pediatrie Resident at

the Bronx Memorial Hospital, Albert Einstein School of

Medicine. From 1973 to 1974, I attended the London

School of Hygiene and Tropical Medicine, in London,

England. From 1974 to 1976, I was Senior Epidemiolo-

gist at the National Institute of Child Health and Human

Development of the National Institutes of Health. From

1976 to 1977, I was in private practice as a pediatrician

and as a consultant in epidemiology. From 1977 to the

present time, I have been an associate with Tabershaw

Occupational Medicine Associates.

2. I appeared as a witness for the Manufacturing

Chemists Association during the hearing held last sum-

mer by the Occupational Safety and Health Administra-

tion (OSHA) on the proposed standard for occupational

exposure to benzene. In the course of preparing my

testimony and attending the hearing, I became thoroughly

familiar with the evidence associating occupational ex-

posure to benzene with leukemia, particularly the study

conducted by Infante, et al.’

3. In December of 1977, I prepared and presented

to the Environmental Protection Agency’s Science Ad-

1 Infante, Rinsky, Wagoner & Young, Lewkemia Among Workers

Exposed to Benzene (April 28, 1977) (OSHA Exhibit 40).

SELLA RPM te phe ED

2 ne a ee

°

31

visory Board a review and critique of the preliminary

report by EPA’s Carcinogen Assessment Group (CAG)

entitled “Population Risk to Ambient Benzene Expos-

ures.” * I have the following comments on the CAG re-

port as it compares to the risk estimate developed by

Dr. Richard Wilson, presented to OSHA during the 1977

benzene hearing.* I have reviewed and am thoroughly

familiar with both documents.

4. In its brief filed in the above-captioned case on

June 8, 1978, OSHA cites the CAG’s preliminary find-

ings of 30-80 cases of leukemia from exposure to ambient

levels of benzene as discrediting Dr. Wilson’s analysis,

which concluded that OSHA’s 1 ppm standard will pre-

vent, at most, 2 cases of cancer every six years.‘ OSHA’s

use of the CAG estimates, which are based on the lifetime

continuous exposure of a population of 220 million people,

is specious and seriously misleading as applied in the

occupational context. I have performed a series of cal-

culations (See Exhibit A) which show that the CAG’s

risk estimate, when translated to the occupational con-

text, is fully consistent with—indeed, somewhat lower

than—Dr. Wilson’s estimate.

5. The CAG and Wilson estimates are based on risk

estimates of two different populations with two different

sets of exposure assumptions. The CAG estimate of 30-

80 cases is an estimate of the number of cases of acute

non-lymphocytie leukemia deaths that might occur an-

nually if the USA total population of 220 million people

were exposed continually throughout their lifetime, 24

hours a day, 365 day a year, to a benzene concentration

of one part per billion in air.

6. The Wilson estimate of one leukemia case and one

additional cancer case in 6 years is based on the assump-

tion that for a year 30,000 workers exposed to benzene

at a level between 1-10 ppm are exposed 8 hours, 240

working days a year at an average level of 3 parts ner

2The CAG Preliminary Report is attached as Addendum C to

OSHA’s brief filed on June 8, 1978 in the above-captioned case.

3’ Testimony of Dr. Richard Wilson, Ex. 149.B.

* OSHA Brief 87 n.80.

32

million benzene in the air. The figure of 30,000 is ob-

tained from page 1-7 of the Economic Impact Study of

the proposed standard prepared by OSHA by Arthur D.

Little, Inc.

7. In order to compare these estimates, they must be

related to the same exposure level and time and to the

same population. CAG indicates that their case numbers

are based on an estimation that the lifetime (70 year)

risk of leukemia due to lifetime (70 years), continuous

(24 hours/day, 365 days/year) exposure to 1 ppb ben-

zene in air is from 1 x 10° to 2.5 x 10°. Wilson’s case

numbers derive from the assumption that 1.8 x 10° is

the yearly risk of a worker dying from leukemia from

having been exposed for one work year of 8 hours/day,

240 days/year to a level of 1 part per million benzene.

Attached Exhibit A reviews the algebra necessary to com-

pare the two estimates.

8. Assuming an average lifetime of years, Equation 2

divides the CAG risk by 70 and identifies the lifetime

risk for 1 year, continuous exposure to 1 ppb of benzene

as [from 0.14 to 0.36] x 10, or [from 140 to 360] x

10°. In Equation 3, I again divide by 70 to produce

the annual risk of 1 year, continuous exposure to 1 ppb

of benzene, which is [from 2.0 to 5.1] x 10°.

9. Workers do not work 24 hours a day, which is the

exposure period assumed in the CAG model, but generally

work only one-third of a day (8 hours). Therefore, Equa-

tion 4 divides the CAG risk by 3, to produce a risk of

[from 0.7 to 1.7] x 10°, as the annual risk for 1 year

of eight-hour daily exposure to 1 ppb of benzene.

10. In addition, the CAG estimate assumes exposure

every day of the year, but workers do not work every

day. Therefore, weekends, holidays and _ vacations,

amounting to about one-third of the full year, must be

excluded. Equation 5 accomplishes this, and shows an

annual risk for 1 work-year of eight-hour workday ex-

posure to 1 ppb [from 0.45 to 1.1] x 10°.

11. Finally, the CAG assumes exposure to 1 part per

billion of benzene. To obtain the risk of exposure to 1

5 CAG Preliminary Report, Table 3.

33

part per million of benzene, the risk must be multiplied

by a factor of 1000, and Equation 6 reveals that, based

on the CAG’s risk estimate, the annual risk of 1 work

year of eight-hour workday exposures to 1 part per mil-

lion of benzene is [from 0.45 to 1.1] x 10”.

_12. Thus it is shown that CAG’s estimate of lifetime

risk of acute non-lymphocytic leukemia (ANLL) death

of [1.0 to 2.5] x 10° for lifetime continuous environ-

mental exposure to 1 ppb benzene is equivalent to a

[0.45-1.1] x 10° annual risk of ANLL death for 1 year

of occupational exposure (8 hours/day, 240 days/year)

to 1 ppm benzene.

13. Dr. Wilson has based his case count on an annual

risk of death from all types of leukemia (not just ANLL)

of 1.8 x 10° for one work year of occupational exposure

to 1 ppm benzene. Since only 43% of leukemia deaths are

due to acute nonlymphocytic leukemia, the Wilson risk

can be translated into a 0.77 x 10° risk of acute non-

lymphocytic leukemia death from one work year of oc-

cupational exposure to 1 ppm benzene.

14. Thus, Wilson and CAG have reached the same

estimate of the annual risk of acute non-lymphocytic

leukemia death due to one work year of occupational

exposure to 1 ppm benzene, to wit,

CAG estimate = [from 0.45 to 1.1] x 10°

Wilson estimate — 0.77 x 10°

15. Based on the data provided in the Arthur D. Little

Study, Dr. Wilson assumed that the 30,000 workers

exposed to between 1 and 10 ppm are exposed to an

average of 3 ppm benzene. It therefore follows, using the

CAG estimate, that a reduction in these workers’ ex-

posure to benzene from 3 ppm to 1 ppm might reduce

“sg ANLL mortality annually for each year of exposure

y

(0.45 to 1.1 x 10°) x (1 work year) x (3 ppm-l

ppm) x (30,000 people) = ([0.45 to 1.1] x 10°)

x 1 x 2 x 30,000 = (.027-.066) cases ANLL/year.

= one case every 15-3714 years

Use of the Wilson estimate of .77 x 10° would predict

046 excess cases ANLL each year or 1 case every 21

years.

34

16. Wilson’s estimate of one leukemia case and one

other cancer case in 6 years was based on three addi-

tional conservative assumptions.

a. All leukemias (not just ANLL) are benzene re-

lated.

b. For every benzene leukemia there would be an-

other cancer at another site in the body due to

benzene exposure.

ce. Benzene exposure of those currently exposed to

1 to 10 ppm benzene would be far less than 1

ppm if a new standard were introduced.

There is no reason to believe the need for any of these

pessimistic assumptions, but these assumptions account

for the different numbers derived from the Wilson risk

estimate.

17. It is concluded, based on the CAG estimate and

its underlying assumptions, that reduction of occupa-

tional benzene exposure from 10 ppm to 1 ppm for each

year of work might reduce the annual mortality for acute

non-lymphocytic leukemia by 1 case every 15-38 years.

18. The CAG estimated range was based on the

premise that the Infante cohort was exposed to a mean

occupational exposure of 24-40 ppm benzene. This was

based on the assumption that the exposure was at the

maximum permissible exposure level in effect from time

of hire in the forties to the end of study period 1975.

This assumption leads to an under-estimation of the levels

of exposure because: 1) industrial hygiene data show

that nearly half the surveys indicated levels greater than

the TLV at that time; and 2) the inclusion of exposure

estimates through 1975 is inappropriate since all the

leukemia deaths occurred prior to 1962 and the period

of exposure necessary to inclusion in the study ended

in 1949; and 3) the estimate ignores exposures prior to

1941 when no maximum exposure standard existed and

during which many employees worked. Evidence in the

hearing indicated that levels of exposure exceeded 100

ppm in the forties.’ If the CAG estimates was recal-

® See Brief of API, AISI, MCA and IPAA, the printed version

of which was filed in the above-captioned case on June 13, 1978,

at pp. 15-18, 26-37.

35

culated under the assumption that the exposure was at

100 ppm (rather than 24 or 40 ppm), the risk estimate

would be further reduced by 60% to a risk estimate of

about 0.20 x 10°, which would predict that OSHA’s 1

ppm standard would avoid .012 cases ANLL per year,

or about one case in 83 years.

19, The purpose of this exercise has been to indicate

the similarity between the risk estimates produced by

CAG and by Dr. Wilson. My purpose has not been to

prepare a new, independent estimate of the effect of

OSHA’s standard. As indicated by CAG’s acknowledge-

ment that its risk estimate may be off by several orders

of magnitude, risk estimates are necessarily imprecise

because of the large number of variables (such as eXpos-

ure levels, non-occupational exposures, etc.) for which

accurate information is not available. Nonetheless, it is

encouraging that the two different attempts to conserva-

tively address these issues compared here have reached

results so similar.

STEVEN H. LAMM

36

EXHIBIT

(1) [1.0 to 2.5] x 10-5

(2) [10 to 25] x 10

70

(3) [140 to 360] x 10°

70

(4) [2.0 to5.1] x 10-°

3

(5) 240 x [0.7 to 1.7] x 10°

365

(6) [0.45 to 1.1] x 10-® x 108

A

[10 to 25] x 10-°

CAG estimate of lifetime risk

of lifetime, continuous ex-

posure to 1 ppb of benzene

[0.14 to 0.36] x 10-°

140 to 360 x 10-°

lifetime risk for 1 year, con-

tinuous (24 hour) exposure

to 1 ppb

[2.0 to 5.1] x 10-°

annual risk for 1 year, con-

tinuous (24 hour) exposure

to 1 ppb

[0.7 to 1.7] x 10-*

annual risk for 1 year, 8 hour

daily exposure to 1 ppb

[0.45 to 1.1] x 10-°

annual risk for 1 work year

of 8 hour, workday exposure

to 1 ppb

[0.45 to 1.1] x 10-6

annual risk for 1 work year

of 8 hour workday exposure

to 1 part per million

37

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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

78-1707, 78-1745, 78-1988, 78-1989, 78-2642, 78-2779, ©

and 78-3023

OSHA No. 77-1395

Before Coleman, Clark and Tjoflat, Circuit Judges.

JUDGMENT

These causes came on to be heard on the petitions of

the American Petroleum Institute, et al., and were ar-

gued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the petitions

for review of an order of the American Petroleum

Institute, et al., in this cause be, and the same are

hereby granted; the provisions of the order reducing

the airborne permissable exposure limit and the dermal

contact prohibition are set aside and the remaining pro-

visions of the standard in this cause be and the same are

hereby vacated.

It is further ordered that respondents pay to peti-

tioners the costs on appeal to be taxed by the Clerk of

this Court.

October 5, 1978

Issued As Mandate:

38

SUPREME COURT OF THE UNITED STATES

No. 78-911

INDUSTRIAL UNION DEPARTMENT, AFL-CIO, PETITIONER

Vv.

AMERICAN PETROLEUM INSTITUTE, ET AL.

ORDER ALLOWING Cermionady) Filed February 21, 1979

The petition herein for a writ of certiorari to the

United States Court of Appeals for the Fifth Circuit is

granted. The case is consolidated with No. 78-1036 and

a total of one hour is allotted for oral argument.

39

SUPREME COURT OF THE UNITED STATES

No. 78-1036

RAY MARSHALL, SECRETARY OF LABOR, PETITIONER

| v.

AMERICAN PETROLEUM INSTITUTE, ET AL.

ORDER ALLOWING CERTIORARI. Filed February 21, 1979

The petition herein for a writ of certiorari to the

United States Court of Appeals for the Fifth Circuit

is granted. The case is consolidated with No. 78-911 and

a total of one hour is allotted for oral argument.

40

[The following testimony is from the reporter’s

transcript of the rulemaking hearing on the

proposed benzene standard]

* * * *

[859] MR. JACOBSON: Thank you. One other ques-

tion here and that is the employes that were cited here

had considerable dermal exposure as well as exposure in

the working atmosphere as far as inhalation. Does any-

one on the panel have any feeling as to whether this

dermal exposure is a contributing factor or [860] is the

addressing of the dermal problems with benzene in this

proposed standard for problems other than leukemia.

DR. DOUGLAS SMITH: I can start it off and then

if someone wants to continue it a little bit, they can.

Yes, the problem of dermal absorption is, I think, real.

Benzene in relation to other aromatic materials, by com-

paring it let’s say to toluene and xylene. Apparently it

is not absorbed through the skin at the same rate as

toluene and xylene but it nonetheless can be absorbed.

Even if you take and have a situation in which you

have got an inflamed skin or some abnormal situation,

or if you have got it contained in a mixture, I| believe

that a considerable amount can be absorbed. I believe

that this has been demonstrated in the past with meas-

urements of urinary phenol from dermal absorption of

benzene.

We don’t consider that it is absorbed as a clear com-

pound extensively. It can be. -

MR. BAIER: Maybe Blair or ;Bob would want to dis-

cuss it from a medical standpoint» .

DR. LAIGO: Well, it can be absorbed through the

skin, it is readily absorbed through -the skin. To what

extent it would be absorbed in any. particular exposure,

you don’t really know. You can’t mesure that. It cer-

tainly is a significant thing and if pele are getting it

on their skin, it certainly could be signi¥icant.

* * * «A

[2104] MR. WARREN: Dr. Zachauses?

DR. ZACHAUSER: I am Richard |

fessor of Political Economy at Harvard |

achauser, Pro-

niversity. My

41

fellow witnesses have testified on the adequacy and in

adequacy of the Arthur D. Little report. I will not focus

on that for two reasons: [2105] First, I think that the

Arthur D. Little Company, assuming that it was at all

responsive to its assigned task, was given the wrong

task. Second, I don’t think that the findings of the Ar-

thur D. Little study, whatever they might reasonably

have been, would likely have influenced the final deci-

sions that OSHA would make. This suggests that we

are in an unfortunate position where analysis is not

employed to affect decision making, but might be thought

of more as a charade.

Let me discuss the way an economist looks at this

problem, indeed, at any problem. The science of econom-

ics is basically devoted to a very simple problem. How

should we allocate resources to competing objectives. With

this problem there are two objectives: One is to have

economic resources available to accomplish other purposes.

The second one is to promote human health.

The economic resources that are involved here are

quite substantial accepting on face value the Arthur D.

Little report. We are talking about $267 million worth

of capital costs, $124 million worth of first year operat-

ing costs, $76 million of continuing operating costs. At

any reasonable rate of discount, this is a $1 billion deci-

sion. It would be reasonable to ask, under the circum-

stances, what are we accomplishing? What are we buy-

ing for our $1 billion expenditure or rather, what are

the people who are being forced to spend their money

buying for their $1 billion expenditure.

[2106] We have a little bit of information in the Ar-

thur D. Little report. For example, we know that there

are 30,000 who are at risk levels above one part per

million. We do not know, however, what happens to

these 30 thousand workers. We know they are to be

moved below a standard, but we don’t know whether we

are getting rid of 20 cases of leukemia, 10 cases of leu-

kemia, one case of leukemia, the expected vaiue of .001

cases of leukemia. I think that information is obviously

vital to our decision making process.

The objection might be raised that we do not want to

put a price tag on human lives. OSHA has continually

42

maintained that there is no legitimate procedure for put-

ting a price tag on human lives and I wouldn’t disagree

with that. I would say that we want full information

so that people in authority in the decision making process

will be able to see what trade off they are making.

Basically to adopt the notion that we don’t have to

quantify the health benefits. Not just saying that there

are health benefits, however small. There was testimony

earlier that they might be non existent. To say what the

actual health benefits are, I think, is essential and to

argue the contrary is to say that ignorance is better than

knowledge. I think that is not a very sensible thing to

do.

Is there anything that we can do where we don’t want

to put a price tag on human lives? I think the answer is

[2107] yes we can try to follow what economists refer

to as a cost-effectiveness approach. Basically, for what-

ever resource dollars we are going to spend for promot-

ing health, we try to achieve the maximum level of bene-

fits. In order to do this, you have to know what benefits

are going to come out of that type of expenditure.

All the time we are incurring risks because we think

we get other benefits. We let people drive cars even

though we know that if we put the speed limit down 20

miles pe. «r., we would have fewer accidents. At zero

miles per ‘cur, we would have no accidents. We allow

people to ec ich desserts, live in wooden houses instead

of brick houses which would be safer and I would say

in all of these areas the level of risk, even if you make

the most exagerated estimate of the leukemic affect of

the exposure to benzene and other health consequences

are much greater than the ones we are confronting here

today.

I say also that the government in its regulatory proc-

esses is getting into this problem in a very major way.

I was reading the Washington Post this morning and

there was an article on what is called CAT scanners,

computer assisted tomography which is a sophisticated

diagnostic technique that assists in various medical pro-

cedures. The Federal government is presently getting

into the position of regulating the use of these scanners

43

not that it doesn’t help in an occasional instance to diag-

nose a very difficult disease, but the benefits in terms of

improved diagnosis and medical treatment aren’t worth

the cost.

[2108] Here we know what the costs are, or at least

we know one estimate of costs. We have no notion of

what the benefits are. I should say, by the way, that

other areas of government have followed the approach

of putting a price tag on human lives. For example,

the National Highway Traffic Safety Administration

which is responsible for such things as tire standards or

air bags, uses a figure of $250,000 per life safed. I

would say that if you figure the $1 billion cost per 30,-

000 workers, that is $30,000 per worker. That would

mean that if we are being consistent with NHTSA, we

would have to save one out of every eight workers.

I don’t think that anybody would argue that one out

of every eight workers who is presently above the one

part per million standard is going to suffer from leu-

kemia, much less die of it.

Consumers Union, which is a consumer oriented pro-

tection group, uses a figure of $1 million. Various other

studies have cited numbers ranging from $150,000 to

perhaps $3 million. I think it is critical that we recog-

nize that trade off’s are being made here and that we

have to at least have the information as to what types

of benefits one part per million offers us.

Let me get to my point about it not mattering what

Arthur D. Little found. Let’s assume that all the costs

of the Arthur D. Little study were multiplied by three.

This becomes a $3 billion rather than a $1 billion ex-

penditure. Would any de- [2109] cision, would any of

the evidence presented today, vary in any way. Take

another hypothetical. Let us assume that the previous

witnesses had been able to quantify exactly how many

lives would have been saved. Then they corrected their

testimony and they said no, we are off by a factor of 10.

Only one tenth as many people would be affected as we

originally said. Is there anything that is part of this

decision making procedure that would reflect that change

in evidence?

44

I think that the answer is no. Unfortunately we

haven’t acquired the evidence so that we could even test

that particular hypothesis. I would like to make one

further point about how one should treat costs here. All

of the costs in the Arthur D. Little report and indeed

in virtually all of the OSHA standards that I have read

about, deal with average costs. They say how much will

it cost us to move from ten parts per million to one part

per million.

They don’t ask the question about the benefits, but

what we should like to know is not only how much does

it cost us to move from 10 to one but how much does

it cost us to move from 10 to two. We could always set

the standard at two parts per million. We don’t have to

deal with rounder numbers. Then we could see whether

the further reduction to one part per million was worth-

while.

For example, if 20 cases of leukemia per year would

be saved by this particular standard, then the cost of

saving one [2110] life would be $50 million. Let’s as-

sume, though, that we could save 19 of those cases for

half of the expenditures by moving to two parts per

million. Then that last life is costing us ten times as

much. I think that the point that should be recognized

is that when ADL or OSHA, when ADL conducts a

study or when OSHA formulates and promulgates a

standard, some attention should be marginal benefits and

costs to further reductions seems absolutely essential.

I would like to pose one disagreement I did have with

OSHA in general and its treatment of economic costs

which is that generally they only count when they get

above a threshold. This is surprising for an agency that

doesn’t accept thresholds going in the opposite direction

to say that only if something is above five percent or

only if an industry is closed down, in which case the

real resources spent are, as Professor Henderson and Dr.

Searbrough testified, are underestimated. Should we

count this as economic costs that conceivably should af-

fect our decision?

So let me summarize very briefly what I say in my

testimony. First, the proposed permanent standard: It

45

is not clear that any principal was used to set the stand-

ard. One part per million is just as good as two parts

per million or three parts per million. There is an avail-

able technology methodology widely accepted in economics,

widely accepted in the health care area, which is cost-

effectiveness where we attempt to achieve [2111] maxi-

mum benefits per dollar expenditure.

Second, no attempt was made to determine marginal

benefits. What will you gain if you tighten or lossen

control? Third, no attempt was made to measure bene-

fits. We get the same conclusion that I suggested ear-

lier. Do we have much greater benefits or much lower

benefits? Within the standard itself, there is little at-

tempt to direct resources to where they would do the

most good. It is noteworthy that this standard, one-

third of the operating costs during the first year are

directed to medical survailance, one third are directed

to monitoring of conditions and one third are directed

to reducing the risks.

Well, do we have the appropriate information as to

what gains we get out of either one of these different

areas? If we did, then we could use even $1 million

worth of resources to achieve substantially more health

benefits both within the benzene related industries and

in other industries.

I guess what I would recommend for action is to un-

derstand that we do not have the appropriate informa-

tion that would enable OSHA to adopt, to reject, or to

modify its standards. What is needed now are analyses

to compute the total benefits from various levels of stand-

ards and also information which was not provided on

marginal benefits and costs.

Unless we have this information, any decision taken

by OSHA now must reflect an emotional or political re-

sponse to an uncharted situation where the information

isn’t available. [2112] I would hope that intelligent and

well informed decision making should be giver a chance.

Thank you.

» * * _

[2141] MR. LE SOURD:

Let me turn to Dr. Zeckhauser’s testimony if I may.

Do I understand, Dr. Zeckhauser, that you are advocat-

46

ing the use of the techniques of the discipline called policy

analysis and specifically that the application of cost ef-

fectiveness analysis in the formulation of occupational

health standards? I am correct?

DR. ZECKHAUSER: I would say it is more than

policy analysis. It is basically the way most effective

government decisions are made and are sometimes put

under that head. It is part of economics. It is part of

government decision making.

MR. LE SOURD: You are recommending cost effec-

tiveness?

DR. ZECKHAUSER: Yes, I am.

MR. LE SOURD: Yes. Further, are you recommend-

ing that no action be taken to promulgate such a stan-

dard as this proposal?

DR. ZECKHAUSER: I wouldn’t make that recom-

mendation. The reason being all that I have learned

from reading the Arthur D. Little report and I have

not reviewed the medical evidence. I have heard a little

bit of it. I have discussed it with people at API and with

their legal counsel. All we know is the cost of [2142]

this information, It is $1 billion. We know nothing about

the benefits of this information. That strikes me as mak-

ing a decision in ignorance. I think we should get some

notion of what the effectiveness will be before we decide

to make a decision of this sort. So my answer would be

yes. We have no basis to make any possible decision.

However, there are some improvements we could make

even if we had to make a decision. I tried to be cost ef-

fective within the standard. Looked to see which expen-

ditures seemed most wasteful. But I would prefer to

get the basic information as to what level of protection,

if any, would be afforded.

MR. LE SOURD: Is cost effectiveness always of the

dr tn principal for use in regulatory action of this

sort?

DR. ZECKHAUSER: In protective regulation, it is

frequently very useful. There are some times where a

government regulatory agency may feel that it can

put a price on a level of protection that is afforded.

Otherwise it might chose to value a life.

47

I generally don’t think that that is very helpful. OSHA

has objected violently to it and has therefore stopped its

analysis more or less burrying its head in the sand.

Cost effectiveness analysis just gives you a way of

utilizing information to see, for example, that here maybe

we are saving a life at a cost of $50 million where as

we are failing to save lives, for example with the CAT

scanner that I [2143] mentioned earlier, that would cost

$500,000. We put more of our resources into CAT scan-

ners which has been identified as a rather wasteful!

technology by the government and less into protecting

workers in this way possibly offering very minimal bene-

fit, then we would be using cost effective analysis to do

that determination. The basic principal is that it high-

lights the trade off’s and allows decision makers at all

levels. As you know, the President of the United States

has expressed an interest in OSHA’s decision making

processes to learn what is being gained at what cost.

This is precisely the information, for example, that

the workers in the refineries themeselves and the other

establishments would use if they owned the refinery and

had to make the decision, should we protect ourselves?

My guess that if they did attempt to make that decision,

they might decide that it was worthwhile living with a

little more protective equipment. As you know, that is a

very cost effective way of protecting people, but as you

know that is also ruled out by traditional OSHA pro-

cedures.

I think that quantifying the effectiveness and the

costs of various types of impositions would immediately

inform decision makers within OSHA, within the govern-

ment and within the nation as a whole as to what is be-

ing gained at what cost and would enable OSHA to ration-

alize its interventions getting more occupational safety

and health for whatever level of re- [2144] sources that

are spent.

[2149] MR. LESOURD: Dr. Zeckhauser, you have said

that the guiding principle of cost effective analysis is

that for whatever level of resource expenditure we are

undertaking we should attempt the maximum possible

48

level of effectiveness. Is this a correct definition, then,

of cost effectiveness analysis?

DR. ZECKHAUSER: That is part of it. The other

part of it is that ultimately the decision maker should

look at cost and effectiveness and decide what level of

resources we want to spend. But, yes, that is an import-

ant component, and we want to get maximum effective-

ness for whatever level of resources we expend.

MR. LESOURD: Would you agree that it is OSHA’s

obligation to provide insofar as can be accomplished a

safe and healthful workplace for workers?

DR. ZECKHAUSER: As I remember the original

enabling legislation, it was insofar as possible. Also, in

the original legislation there was the term feasible, which

has generally been interpreted to include technologically

feasible. I think that any decision maker concerned for

the total resources of cur nation—and this is the lesson

of economics that you shouldn’t forget anything when you

make your decision— [2150] would want to interpret that

as being economically feasible as well. We shouldn’t

buy miniscule protection for an extra-ordinarily high

amount. The problem with saying safe and healthful is

how safe is safe? At what level? Why one part per mil-

lion? Why not .001 parts per million Why not zero parts

per million and put the petroleum industry maybe out of

business if we got an absolute zero because there is no

way you can assure nothing will creep through any mode

of protection?

So the problem with saying safe and healthful by it-

self, without qualification, is that there is no level that

is safe and healthful. OSHA has run into this problem

with regard to a number of its standards in that they

haven’t been able to define that level. We had a stand-

ard of ten parts per million. If that was safe and health-

ful, then it is still safe and healthful. It is not as though

the biology has changed at all. That was a decision we

chose to make at that time on the basis of not very good

information. We now it seems do not have much more

good information, and we are just changing our standard.

<a

49

I would like to have the information available so we

could provide insofar as seems feasible and desirable a

safe and healthful workplace, not meaning eliminating all

risks or we would close down all of American industry.

MR. LESOURD: Did I understand then that you are

[2151] equating cost effectiveness with economic feasi-

bility? That is how you define economically feasible?

DR. ZECKHAUSER: Economic feasibility would

mean that it was decided by the decision makers that the

benefits were worth the cost, the marginal benefits. When

we pushed it further, the marginal benefits were worth

the cost. Or you may say I might refer to that as econ-

omic feasibility, yes.

MR. LESOURD: Are you saying then that in the case

of this proposal for benzene that the cost effectiveness

of moving from 10 ppm to 1 ppm is not sufficient to justi-

fy this change? I am not sure that I followed you.

DR. ZECKHAUSER: No, what I would say is no in-

formation has been provided so that we could compute

the cost effectivenesss. We have the cost. Let us ac-

cept, subject to lowest limitations, the Arthur D. Little

report as an accurate reflection of costs. Then, we

would have to know—you said it yourself and you are an

economist as am I—economists look at al the outputs

of a process. Let us look at the costs that we are incur-

ring. Let us look at the benefits we are receiveing. There

is no discussion of the benefits. We don’t know how

many workers are getting protection, if any. All we

know is we are moving from 10 parts per million to 1

part per million.

I would like to know how many cases of leukemia are

[2152] we reducing? What other types of illness are

being avoided by moving from 10 parts per million to

1 part per million? And there is no information to that

effect. If we had that information, I think that a lot

of this debate would go away. We are arguing in a

vacuum. We know what the costs are. It is a remarkable

proceeding. We know what the costs are. The argument

is made that the costs aren’t excessive and therefore we

should have the standard. And nobody has even bothered

to say, “But what are we getting for it?”

50

I can’t say whether it is cost ineffective because no-

body has bothered to tell me what the benefits are in terms

of reduced healthfulness.

MR. LESOURD: Would you think that there is a

difference in dealing with carcinogens versus dealing with

non-carcinogenic toxic materials as to the decision that

would be made?

DR. ZECKHAUSER: I think that you would want to

worry about the health loss. I am as worried about

workers being run over by forklift trucks as I am by

workers dying of cancer. I am as worried about workers

dying of heart attacks as I am by workers dying of can-

cer. There are losts of other diseases. Black lung dis-

ease—it bothers me tremendously. I don’t like to see it,

and I am delighted that we have a regulatory effort that

protects miners. That is not carcinogenic.

[2153] MR. LESOURD: How difficult do you think

that it would be to get an adequate dose-response func-

tion or health benefit function that would answer this

question?

DR. ZECKHAUSER: I am not a doctor, but I think

that the testimony earlier today, the testimony that we

have been presented, put a clear upper bound on the level

of benefits that could be secured. Otherwise, the debate

that was going on before we came on to testify was is

there any, is it equivalent to one cigarette per year, one

cigarette in a life time, whatever else it might be? I

think that if somebody came in and said in the most

pessimistic view of the carcinogenic effects of benzene

this moving from 10 parts per million to 1 part per

million will save 200 lives over the next ten years and

the most optimistic view of the carcinogenic effects of

benzene, otherwise that it is not very carcinogenic, it

will save 30 lives. Then we would know. We are saving

between 30 and 200 lives, and we would say are there

other ways that society can spend resources, be it air

bags or mine safety or other modes of safety in the oil

refinery or within the coke oven plant that will offer

more health benefits for the cost?

I think we also could look for cost effectiveness even

within this present standard. For example, I noticed that

51

there were four medical inspections per year for all

sorts of different classes of workers, including some whose

exposure [2154] levels were very low. That can’t be cost

effective. Now, it may be that we should have four for

this class of workers and one per year for this class of

workers unless some statistical evidence tells us that

we should increase that level of surveillance. But there

is no attempt to do this. Jt is sort of the notion of you

provide absolute protection with absolute standards. As

a consequence, cost effectiveness is left out of the dis-

cussion. Effectiveness is left out of the discussion. Bene-

fits are left out of the discussion. Health is left out of

the discussion except that health is at risk, and that is

sufficient to set a standard.

* a x *

[2156] MR. LESOURD: You are saying then really, .

if I understand you, that the relative risk and probably

other matters such as latency period and the dose-re-

sponse function have to be known before you can make

these calculations of cost effectiveness?

DR. ZEKCHAUSER: I think that we should make

some [2157] effort to gather the information that we

have, to collect that information before we make a de-

cision. Yes, I would say that is the case. We can put

upper bounds. The discussion this afternoon suggested

that we can put upper bounds on the dose-response re-

lationship. You may argue that it is here, and I might

argue that it is here. But even if we accepted your esti-

mate the most tangential studies we would have an upper

bound of what it might be. And I think that informa-

tion should be part of the standard setting process.

MR. LESOURD: On page 8 of your written testi-

mony you stated that OSHA “should make every at-

tempt to be consistent across the broad sweep of problems

encompassed by occupational health and safety.” By con-

sistency do you mean the trade-off rates, which I believe

was your term?

DR. ZECKHAUSER: Yes. If that were done, then

we could be sure that the total level of impositions of

OSHA we would be getting the maximum health bene-

fits. So that if OSHA is, for example, with its cotton

52

dust standard, a very great health problem, sacrificing

lives at $500,000, otherwise for an additional $500,000 a

life could be saved, but with benzene saving a life at

$50 million, then what we should do is cut our expendi-

tures in benzene. And with that same $50 million we

could save I guess—I can’t remember my numbers ex-

actly, but I think it is 1,000 workers in the cotton dust

area. .

[2158] MR. LESOURD: But aren’t you—

DR. ZECKHAUSER: I don’t remember what the

numbers are—

MR. LESOURD: Isn’t it true that the expenditures

that the textile industry may make for compliance with

the regulation are not transferrable to some other in-

dustry for them to expend. So, you are not really com-

paring anything.

DR. ZECKHAUSER: But to the extent that most of

these expenditures are borne ultimately by consumers and

taxpayers at large. The textile industry raises its prices.

The benzene industry, petroleum industry, petrochemical

industry raises its prices. We bear the cost particularly

if demand is inelastic. So, too, if the companies lose

profits half those profits are absorbed by the taxpayer

at large so that an awful lot of the costs go back to,

you know, John Q. Public. So, I think from that stand-

point the costs are transferrable.

But I am only saying within the broad sweep. I don’t

mean that it has to be one to one. But let us not have

it 1,000 to one. Of course, here we don’t know what it

is at all because we have no notion as to what that ratio

is, although we can put a minimum on it.

MR. LESOURD: Then, you are not really saying that

they should be equal?

DR. ZECKHAUSER: In an ideal world maybe you

would [2159] have them equal. It is sufficient we are so

far from the optimum that it would be good to move

in the right direction. We could dramatically improve

occupational health and safety, save resources at the

same time, if we had a ratio where one was 100 to 1 and

one was 1 to i by moving so that one was 30 to 1 and one

was 15 to 1. As to whether they should move finally to

53

equality that is sort of a refinement that we can get to

later.

MR. LESOURD: How far do you think that OSHA

should go in comparing standards? Should it look at the

total range of all possible health and safety standards

and then examine the trade-off among all of these before

it acts on one?

DR. ZECKHAUSER: No, I don’t think it should. I

think they should come up with standards as they are

identified and as they come to the public view. I think

if we gather the appropriate information and fed it into

hearings such as this one and in its promulgation of regu-

lations it was made available in the newspapers and to

Congressmen, to the press, and the President, then very

shortly there would be forces pushing towards equaliza-

tion. But, I think that we should protect workers against

benzene now. The question is to what level should we do

that? We don’t have to worry as to what we are going

to be doing with cotton dust tomorrow or five years from

today. But we can look to other areas. NHTSA, which

I mentioned earlier, this Traffic Safety Agency, [2160]

is already proposing a lot of standards that are already

in effect. We can use that as a vague guideline.

We can look at OSHA’s other standards as a vague

guideline in terms of what we would do now. But the

main thing is that if we had the information then people

would comment. Congressmen would say this is outrage-

ous. No, we didn’t want to spend this amount of money.

When we passed the OSHA Act, we didn’t understand

what was really involved. Many Congressmen are say-

ing that.

* * * *

[2167] MR. LESOURD: Am I correct that you seem

to be assuming that you know the benefits, yet you are

telling us that the trouble is we don’t know the benefits?

Yet you are saying that the benefits of this change from

10 to 1 can’t justify the costs? It seems to me that you

are doing that.

DR. ZECKHAUSER: I don’t think I am being clear,

and I apologize. We know from earlier testimony. They

were quarreling this afternoon as to what the maximum

54

benefits could be. We can get a maximum estimate of

the benefits, and then we could say it is worthwhile. What

is the most number of workers that could be protected?

I think that we could provide some guess in that direc-

tion now. Maybe I am wrong. If I am wrong, that

information should have been generated.

I would like to use that information to decide what

we do right now. But I would also like to refine those

estimates, get estimates of marginal benefits, get not the

extreme valuation of the benefits but something more in

the middle of the range so we can know what sensible

action should [2168] be taken. So, I don’t claim that we

have the knowledge of the benefits.

My guess is, though, that medical witnesses would

give some maximum level. I think that is what they

were doing this afternoon.

MR. LESOURD: You do feel, do you, that even if

all that we could ever know was what some upper bound

might be on these benefits, there would still be a basis

for action at some time at least when we had determined

that that was all we could know?

DR. ZEKCHAUSER: Well, I don’t think that we will

ever determine that is all we can know. There have been

many other areas where we started off with a broad

guess. Eventually we refined it. I don’t think that would

be too hard to do. I think that it is quite possible in

this case that knowing the maximum benefit might tell

us what we shouldn’t do. It might tell us that this

present decision is wrong. It might not tell us exactly

where we should set the standard, whether we should

lower it as far as 5 parts per million. It might not tell

us whether we should have four medical inspections per

year or two medical inspections per year.

For example, in medical inspections I think we will

know within one year what sort of benefits come out of

four inspections per year as opposed to one inspection

per year. We might run a controlled experiment. It

would be very easy [2169] to do. That is not something

where we have to have new insights into epidemiology.

We can say, look, with these 1,000 workers we gave them

four examinations per year and we didn’t find anything,

55

with these workers we found an awful lot. You know an

awful lot more about the benefits of those medical exams.

I think that we could find out that information.

So, I think that the first question we should ask is,

“Without our present estimates of maximum benefits and

our estimates of costs, however good or bad they may

be, does it seem worthwhile just to move from 10 parts

per million to 1 part per million?” I think that is a

question that we can ask.

And that information is not provided, and that infor-

mation is not generally part of OSHA’s decision making.

[2180] DR. PARTRIDGE: Fine, given the time frame

available for a variety of analyses that might be under-

taken, if we were to take the approach that you are sug-

gesting to look at a variety of potential regulations,

what would we do in an interim situation where we have

a potential or a known carcinogen that requires regu-

lation?

DR. ZECKHAUSER: We would collect information

on the costs. That is what your organization has done.

[2181] DR. PARTRIDGE: Correct.

DR. ZECKHAUSER: We would collect information

on the benefits. There is some information that is not

presented. It was not presented in your report. I take it

that was not the charge to Arthur D. Little. It is nor-

mally not a charge that OSHA makes. We would pro-

vide that information, and we would make our decision

on the basis of the best information that we could gather.

Here we have not provided the best information that we

could gather.

I would like to see in your report or in the document

that promulgates OSHA standards a notion of using

this piece of epidemiological evidence we estimated that

these benefits would be provided, using this piece of

epidemiological evidence which is much more optimistic or

pessimistic or whatever else it is these would be the

benefits that would be provided. This was the range

that came out of the studies that we examined. That is

what I would like to do. In the interim if that informa-

tion were provided, I would like to compare it across

56

other areas. At least I would like to have it provided

so that OSHA for its own internal decision making pur-

poses would use it in a reasonable fashion.

DR. PARTRIDGE: Okay. In this type of situation

then would we be able to draw upon preceding studies as

a basis for future promulgation, where we are gradually

[2182] accumulating a body of literature and knowledge,

be it cost effectiveness or what have you.

DR. ZECKHAUSER: You certainly would, but we

couldn’t in the occupational health area given OSHA’s

refusal to quantify the benefits from its impositions.

We would have to look at this time to studies done in

other areas with the hope that since OSHA has been a

playing an increasing strong role in the occupational

health area that soon we will have broad enough studies

that would be able to inform us.

DR. PARTRIDGE: Begging the issue of whether or

not OSHA is willing to quantify benefits or not, would

you be prepared to utilize information that is now being

collected as a basis for quantifying the value of human

life for a variety of regulations?

DR. ZECKHAUSER: Well, there is a difference be-

tween quantifying the benefits in terms of how many

lives are saved and quantifying the value of a human

life. I think that quantifying the value of a human

life so turns off large groups of people that it is not

something that should be done. It doesn’t inform the de-

cision making process very much, and it just gets people

upset. Now I have actually seen some Arthur D. Little

studies that did do that, and I think they had precisely

that effect—the Pan American Health Organization wor-

rying about the benefits of mosquito eradication.

[2188] DR. PARTRIDGE: Fine. On page 13 you

make a statement more significant the uncertanties us-

ually the greater are the benefits for some sustained

study of the problem. If initial predictions of health

benefits range, say, over true orders of magnitude, several

months of investigation may narrow the prediction to

within a factor of 10. Extremely narrowing of this sort

may dramatically change both the form and severity of

57

the regulatory intervention that we wish to employ in

a particular case.

Would you briefly describe to my what types of ad-

ditional investigation you are advocating here?

DR. ZECKHAUSER: Well, what I would do is I

think I suggested earlier I would start off by asking our

medical witnesses to attempt to quantify the benefits,

and obviously we have got a range, with some people

suggesting that benzene causes more cases of leukemia

than others. I think that we would be most able to nar-

row uncertanties in something like the frequencies of

monitoring and surveillance, medical surveillance, where

I think a good control study within one year could tell

us an extraordinary amount, whether 50,000 exposed

workers will pick up—and nobody would know right now

—200 disturbing symptoms, sets of disturbing symptoms

or two. You gain an awful lot knowing that, and right

now if somebody were asked to testify they would have

an extra-ordinarily broad range. There is a study. We

could do it, [2189] do it in a year, and we would have

a much better standard in a year from today.

[2190] DR. PARTRIDGE: You are talking about an

almost after the fact evaluation of certain compliance ac-

tivities. I prefer to go back to perhaps issues of toxicology

and—

DR. ZECKHAUSER: I repeat my opinion with re-

gard to benzene. I don’t know what the level of un-

certainty is over the leukogenic consequences of benzene

exposure. I heard some discussion as to whether 10 parts

per million was safe or one part per million was safe,

and I guess we could find out something more about that.

I would like to see those studies conducted. It miglit take

some time. At the outset since I don’t think that it would

matter much for the standards, and certainly not the way

they are implemented, I would even be willing to live

with a reasonable maximum estimate of, the-benefits, and

make that information avaftable to Congress.

DR. PARTRIDGE: Have you participated in any of

these studies that you are advocating, these additional

studies? Are you aware of any such activities and the

results of such an activity?

58

DR. ZECKHAUSER: I haven’t done them in terms

of occupational health and safety. I have done them

however in other areas. For example, I participated

in a study that was published this spring on the risks,

costs, and benefits of surgery and when we started that

study we didn’t know whether various surgical proce-

dures were very effective or efficacious.

[2459] MR. VAN VOORHEES: Your Honor, first we

have Dr. Howard Maibach appearing on behalf of the

American Petroleum Institute.

JUDGE LAWRENCE: Present your testimony.

DR. MAIBACH: My comments will be very succinct

and limited to one simple issue, and that simple issue is

how much, if any benzene, applied to the skin of man

goes through the skin. In order to make some sense of

the recorded data that is present to you in the literature,

to anybody, I have taken the liberty of summarizing it

into two parts, with interpretations of each.

The first part starts in 1897, and the second part

starts in 1946. The first part in 1897 were attempts

[2460] to determine how much benzene goes through

your or my skin by applying the material to animals.

Now, in 1897 when this was done, there was essentially

no information available as to how the skin of a guinea

pig or a rabbit differed from our skin other than the

fact that we obviously share some dissimilarities in ap-

pearance.

The first observation was by Santeson in 1897. The

material was applied to the rabbits. The rabbits had had

their hair removed, and the skin of the rabbit changed

under observation, and they questioned whether the ma-

terial went through it.

The next observation was in 1925 when Morrow ap-

plied material to guinea pigs. The guinea pigs had their

hair removed. Again, there were no quantitative esti-

mates to determine how much went through, just to see

if there was a change in the physical appearance of the

skin.

For all practical purposes then, the first observation

to try to determine how much benzene goes through the

59

skin was in 1931 when Lazarev and his associates did a

simple experiment in which they immersed either the

ear or the paw of rabbits or mice into benzene for some

hours, and then they attempted to measure how much,

if any, of the material went through the skin by looking

for benzene in the breath with a colorimetric assay, and

they came up with a figure, which has been [2461] pub-

lished and quoted, stating that the amount of penetration

was several milligrams per centimeter per hour.

_ I think that it is very likely that for the rabbit this

is probably a very correct observation. The problems with

extrapilating that to your skin or my skin is simply that

the amount of benzene used was enough to “mummify”

the skin, which is a very different situation than you or

I working with benzene. Mainly they were dealing with

very abnormal skin.

Next Leeman attempted to measure the penetration

of benzene through the skin of animals and records that

he saw no penetration.

The last animal experiment was by Petrilli in which

benzene was applied to the skin of the guinea pig in a

pack, and I will get into the significance of a pack, and

“slight intoxication” was noted.

I think the most relevant experiments are those that

started right after World War II in Italy, leaving the

skin of animals and going directly to the skin of man,

and the reason that I believe that this is relevant is that

we now know that there are very grave differences and

very important differences with man being superior to

the animal.

If one wants to give it a teleological connotation,

maluly that man has a skin that is able to [2462] keep

chemicals out a great deal more effectively than many

animal species, and certainly much more effectively than

the rabbit.

The first experiment after World War II in man was

done in 1946 by Cesaro. He did a rather heroic experi-

ment, by many standards. He took some men who were

volunteers, he removed their clothing and placed them

in a tank. He then, in the tank, gave them a breathing

apparatus so that their skin could be exposed. He meas-

60

ured the amount of penetration of benzene by using a

technique of comparing the ratio of inorganic sulfates to

total sulfates. Now this is a relatively crude method in

1977, and using that technique and applying the benzene

both as a vapor and a liquid, and he doesn’t explain how

much he applied, he found that there was no penetra-

tion.

The next experiment was done by the people known as

the Research Association of British Rubber Manufac-

turers. They took a somewhat different tack. Instead of

just applying vapors they applied liquid benzene to the

chests of the volunteers, and they examined both the

sulfate ratios, the total sulfates, and they looked for

benzene in expired air, and they too came to the conclu-

sion that with their experimental technique and with the

analytic techniques available in 1947, that they found no

evidence of penetration.

[2463] We now go another few years. We go to 1956

when Konka and Maltigliotti did an immersion experi-

ment. Here they took the hands of workers, immersed

them, their hands and their forearms, in full strength

benzene for 25 to 35 minutes. Again, they used as their

analytic method the evaluation of breath, and they used

the sulfate ratio method, and they too, again, came to

the conclusion that under the circumstances of their ex-

perimental technique, in immersing the hands, they found

no evidence of penetration.

The last experiment and the one that is the most im-

portant, because here a postive result is equally as im-

portant as a negative result, Hanke and his associates

in 1961 did a somewhat different experiment. In 1961

they took some benzene, and unfortunately I have had

to read this in translation because I don’t read Czech

and I have read the official translation provided to me,

but what they did was they applied the benzene in cotton

pads and then they applied a plate over the cotton pads.

Using this, and using another technique for measuring

penetration now, or as an index of penetration, namely

the amount of phenol appearing in urine, they came to

the conclusion that there was penetration of benzene in

the subjects that they studied.

em

61

Now this experiment has two problems of [2464] in-

terpretation. The first problem is that they were not

measuring the penetration of benzene, they were meas-

uring the amount of phenol, and the people that they

were studying already had a fair bit of phenol in their

urine, so one is stuck with the problem of trying to

extrapolate how much of the phenol was present in these

people before they started out, and how much was due

to that added from the benzene.

The additional problem of interpretation here is very

simply that Hanke, in 1961, didn’t know that any time

you take a piece of anything and you cover the skin with

it and you wrap it with an impermeable dressing, such

as the glass plate, you greatly alter the permeability

characteristics of skin, and for those chemicals that we

have data on, which is unfortunately not benzene, we

know that it is one of the most potent methods of driv-

ing molecules to the skin.

You may know that dimethylsulfoxide is written up

in many of the lay journals and scientific journals as an

extremely efficient way of driving molecules into the skin.

Well, dimethylsulfoxide is not nearly as efficient at driv-

ing molecules into the skin as that little piece of plastic

or a piece of glass. So, the data that Hanke observed

has the one problem of interpretation, how much of the

phenol was due to the benzene, how much was due [2465]

to natural phenol from other metabolic pathways and

secondly, how does one extrapilate by his plate be applied

over the cotton to the situation of the worker.

I would like to summarize both the animal and the

human data by saying that in 1977 it is extremely diffi-

cult, if not impossible, to balance all of the information

that is available. Admittedly, the overwhelming major-

ity of the observations suggest that benzene does not

penetrate the skin. One observation suggests that it does.

Today we have a much simpler and a much more di-

rect way of answering this, and I would hope as the

result of the deliberations of this congregation of ob-

servers and official party that in a very short period of

time we could get a very specific answer because now

radioactive benzene is available, and one simply would

62

apply radioactive 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 the monkey and the guinea pig, nor the rat

would fit into that category, and then would simply look

for the radioactivity excreted into the urine the feces

and the breath.

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

100 organic compounds in the last decade, measuring the

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

us definitively, without argument, and efficiently, [2466]

just how much of any benzene penetrates the skin.

Using the simple technique, it then would become

possible to answer a number of other very relevant ques-

tions for people like yourselves responsible for making

standards.

Question number one, is the material absorbed from

the palms the way it is from the forearm or from the

chest because there is a greater difference between the

absorption of-one part of your body to another than there

is in all of the people in this room.

For instance, for some of the chemicals that have been

measured, there is a 40-fold difference between one ana-

tomical site and the other in man, and so I think if we

are talking about standards for benzene, the site of the

workers skin that is exposed certainly is a site that

should be studied. :

Secondly, a very critical problem that must be answer-

ed, in all of the data that has been provided to me, it

is assumed that benzene applied to the skin has the same

or equal toxic potential compared to benzene inhaled which

is believed to be the major point of entry.

Well, I think in the 1940’s this was a very reasonable

assumption to make. In the 1970’s, we are aware of a

number of examples where the skin metabolizes compounds

in an entirely different fashion than any other part of the

body, and references are in my written testimony. So,

[2467| therefore, once you start to do this and use modern

analytic techniques, it should be possible to determine

is the skin detoxifying or is the skin handling this in

cll Mee NT et, oe TEs be

63

a way similar to the lung, or is it handling it in a dif-

ferent way.

Next, we didn’t know, until 1977 a very basic part

of this story. In 1976 we believed that if you splashed

a chemical on your skin once, or if you splashed a chemi-

eal on your skin ten times, we assumed that if you

applied once and IX went to the skin, if you splashed

it on ten times then 10X went through the skin. We now

know, at least for one chemical, it is the only chemical

that has been measured, that that, although it is a basic

assumption of all dermatologic therapy, happens not to be

correct, and the data for this is in my written testimony

for the one compound.

So, in setting standards for benzene for workers, one

would also want to know is there a difference in one

exposure versus multiple exposures, and again, with

modern analytic and biological technology, it should be

very simple, very quickly, and inexpensively to answer

this.

Another practical matter to be resolved is can one in

fact protect you or myself or any worker with protective

clothing. It is automatically ordinarily assumed that this

is in fact the case, but until you do an [2468] experiment

with the protective clothing, using appropriate method-

ology, one cannot make that assumption. It is very

possible that you may be, but it is equally possible that

it may not be, and it is something that can be demon-

strated.

The last two things that one could measure very ef-

fectively today, within a period, I would think, of 12

weeks, and that is is the amount of benzene that is ab-

sorbed through our skin concentration dependent. Cer-

tainly, in broad range, it must be concentration de-

pendent, but in the practical matter of setting standards,

we do not know whether there is a linear relationship

for all chemicals in terms of the amount of absorption.

Then lastly the thing that would be extremely ger-

mane to know in setting standards is that benzene is a

very volatile material. When it is splashed onto the skin,

is it going to evaporate more rapidly into the air or is it

going to go into the skin more rapidly. I think all of these

and several other questions could be very expeditously

64

answered if any of the appropriate agencies who are in-

terested in setting the standard wish to obtain the data.

JUDGE LAWRENCE: Thank you very much, Dr.

Maibach. Does the Solicitor have any questions?

MS. KALARIS: Yes, we have just a few questions.

Dr. Maibach, you said that the evidence was not clear

as to [2469] whether or not benzene is absorbed through

the skin. What is your personal view?

DR. MAIBACH: Well, I appreciate a direct question,

and I will give you an equally direct answer. I don’t

know.

MS. KALARIS: Thank you.

DR. MAIBACH: May I clarify you, because I think it

is important to be in the record.

MS. KALARIS: Certainly.

DR. MAIBACH: I think it should be emphasized

through normal skin of man rather than skin of rabbit.

I think we must separate those.

MS. KALARIS: Would the rate of absorption of

benzene be greater through the broken or the damaged

skin than through the intact skin?

DR. MAIBACH: It is ordinarily assumed that pene-

tration of any molecule will be greater through damaged

skin than undamaged skin, but unfortunately I have

to tell you that today that is usually as assumption rather

than a fact, namely in many dermatologic situations where

we are trying to drive molecules through the skin for

therapeutic purposes, we have almost no background data

to verify that assumption, and it could be that when

we get the data, it may be very surprising.

MS. KALARIS: What is the basis for the [2470]

assumption? |

DR. MAIBACH: The basis for the assumption is

that your skin is protected by an outermost barrier, the

dead skin, the stuff that you see in the bath tub inter-

ferring with the soap, on the side of the tub, the caro-

tene or stratum corneum. That barrier, that little dead

layer of cells in fact is a perfect membrane for allowing

you and I to get out of the seas. Namely, this is the

membrane that keeps water in us.

aS eter en

Martens

65

It has been assumed, and it is certainly true, that

if you remove that membrane, if you damage it, the

water comes right out of you. It has been assumed, in

fact, that it does the same thing for chemicals. Well,

the little bit of analytic data that we have done suggesis

that when we move that barrier we only increase penetra-

tion for the few chemicals, and I don’t want to generalize

on this, about three-fold, and I told you that a little

piece of Saran Wrap will increase penetration about 10-

fold.

Stripping off this barrier increases penetration about

as much as dimethylsulfoxide would, not as much as

occlusion, and certainly there seems—whoever created us

gave us other barriers to penetration, other barriers to

protect us for chemicals going in, other than just the stra-

tum corneum.

MS. KALARIS: Then liquid benzene could damage

[2471] that barrier?

DR. MAIBACH: Liquid benzene could damage that

barrier.

MS. KALARIS: Once the skin is broken, would multi-

ple applications produce more penetration than a single

application? G )

DR. MAIBACH: Last year I would have given the

answer yes. This year, on the basis of the one reference

of new data that I have given you, I don’t know.

MS.KALARIS: And your answer would apply whether

or not there was just splashing of the skin or there was

drenching?

DR. MAIBACH: Would you kindly repeat that?

MS. KALARIS: You said you don’t know, and this

year you said you do not know the effect of a multiple

application, and that would be the case whether or not

there was just splashing, the application was by splash-

ing, by intermittent contact with the skin, and would

also be the case if the skin was thoroughly drenched?

DR. MAIBACH: I would still say that I think that

experimental data must be obtained, because it is very

practical information.

MS. KALARIS: Is there any data which shows that

repeated skin contact does not result in absorption?

66

DR. MAIBACH: The only data that is available—

[2472] MR. VAN VOORHEES: Is that with benzene?

MS. KALARIS: With benzene, yes. Of course.

DR. MAIBACH: No, I don’t have that data.

MS. KALARIS: Okay. Is benzene absorbed more

readily if it is in another solvent such as to toluene or

xylene, does it penetrate the skin more readily?

DR. MAIBACH: I found no data for or against that.

Again, very easily measured in 1977. ;

MS. KALARIS: You mentioned a 40-fold increase

in certain anatomical regions for some chemicals. What

part of the body were you referring to?

DR. MAIBACH: Well, I was specifically referring to

the scrotum. Every chemical that we have studied to

date, using radio isotopes, and using man, suggests that

the scrotum has essentially no barrier to penetration

for many chemicals.

For instance, the first one that we studied was hy-

drocortisone. Hydrocortisone is very poorly absorbed, very

minimally absorbed in the forearm. About 40 percent of

the dose is absorbed in the scrotum.

Some of the pesticides that we have applied, 100

percent of the dose is absorbed in the scrotum.

MS. KALARIS: So other parts of the body would be

less sensitive?

DR. MAIBACH: Generally speaking, we know of

[2473] no area other than the scrotum that is com-

pletely permeable. I might add that the female genitalia

have not been studied so we don’t know the answer.

MS. KALARIS: You mentioned Saran Wrap increas-

ing absorption from three-fold to ten-fold. If you are

wearing a shirt, for example, would that shirt, if it is

splashed or drenched with benzene, act as a Saran Wrap

and increase the absorption?

DR. MAIBACH: The only data that we have bearing

on this is with totally inclusive materials.

MS. KALARIS: Such as?

DR. MAIBACH: Such as plastics, rather than shirt-

ing. Shirting would be an entirely different—it would be

a very relevant question to ask, but we have no background

data to date.

MS. KALARIS: Thank you.

at ln. a at

67

JUDGE LAWRENCE: Do we have any questions

from the floor? Mr. Alexander?

MR. ALEXANDER: Thank you, Your Honor. My

name is Victor Alexander, I am here on behalf of che

Industrial Union Department of the AFL-CIO.

JUDGE LAWRENCE: Would you estimate your

time? .

MR. ALEXANDER: I will try to keep it within a

half an hour, Your Honor.

Dr. Maibach, is there some standard way that [2474]

experimenters use to apply an occlusive dressing? Can

you describe that to us, in an animal experiment?

For instance, if you apply a piece of plastic or Saran

Wrap, are the edges sealed?

DR. MAIBACH: Could you clarify a little bit? If

I knew what you were driving at, I might be able to

answer that.

MR. ALEXANDER: On page five of your statement,

you say it is not clear whether the watch glass was used

as an occlusive dressing, and I am just trying to get

out if the fact that it was held down by an elastic which

might have left the edges open for evaporation, if that

would qualify as a standard type of occlusive dressing,

as you understand it.

Ae sn MAIBACH: I don’t have any ready answer for

at.

MR. ALEXANDER: On page six of your statement,

five and six, at the bottom, and then going over, you

talk about them having performed 52 tests for the concen-

tration of phenol, and that they found an average of 7.2

milligrams of phenol per liter of urine, and that this was

the baseline observation.

Further down the page you say that the maximum

concentration observed in the controls was 16 milligrams.

Do you have any idea how those data were distributed?

For [2475] instance, how many of them had values, say,

above ten?

DR. MAIBACH: I don’t really have a specific idea.

I can give you the exact data.

MR. ALEXANDER: Good.

DR. MAIBACH: In translation.

68

MR. ALEXANDER: I don’t read Czech either.

DR. MAIBACH: Here we are. This is page 10 of

their Table Two, and it is entitled, “Maximum Values

of Phenol Excretion in Urine in Unexposed Persons, and

Persons Who Absorb Liquid Benzene Through the Skin”,

and the maximum concentration of what they call, in this

particular table, “physiologic excretion”, and it is 16.0

milligrams. One of their exposed subjects had 15.8.

MR. ALEXANDER: Excuse me a second Doctor, I

was interested specifically in the controls.

DR. MAIBACH: Okay, they give, as the controls,

16.0, in this particular table.

MR. ALEXANDER: That was the maximum value?

DR. MAIBACH: Maximum concentration in milli-

grams per liter.

MR. ALEXANDER: You reported, on page six, that

the average was 7.2 milligrams.

DR. MAIBACH: Ox«ay, that could be a different

table. The table that we are referring to there is their

Table One, “Physiological Values of Phenol Excretion in

[2476] Different Unexposed Individuals”, and there were

52 tests with a result that they say test results from

3.0 to 16.0 with an average of 7.2.

MR. ALEXANDER: My question really relates to, in

one case, at the top of page six here, you are referring

to 7.2 as a baseline, and further on in your comparisons,

you use 16 which is the maximum observed value for con-

trols, and I ask you if it really wouldn’t be more ap-

propriate to consider 7.2 the baseline rather than 16.

DR. MAIBACH: It is a very germane question. I

chose to use what the authors chose in their discussions.

MR. ALEXANDER: If, in fact, one were to do that,

then the five values you report for the exposed sub-

jects would then have concentrations of phenol in the

urine on the order of two to three times as much as

what I might call the baseline.

. DR. MAIBACH: For that reason, I think if you

and I were doing this, in light of standard experimental

design, neither one of us would do it this way, would we?

We would take each person as his own control because

you would have to worry about outlyers, and if you

69

notice their table in which he gives his physiological

excretion of 16, 3 of the 5 subjects were at baseline level.

I think 2 were above it.

MR. ALEXANDER: At the maximum level for con-

trols [2477] when you say baseline.

DR. MAIBACH: Right. So, obviously that made him

a little uncomfortable too.

MR. ALEXANDER: On page 7 you state that the

authors do not appear to eliminate the possibility that

these two subjects, meaning the two that are above the

so-called baseline represent a contamination from an-

other source. I wonder if we were to apply the other

version of baseline, if, in fact, it might not be a ques-

tion whether or not the 16 vaiue that was observed might

not have been from contamination of another source. If

you might turn that phrase on it’s head, so to speak.

DR. MAIBACH: It is an interesting question, I

don’t have a good answer for it.

MR. ALEXANDER: /You have written several papers

about using a standard technique, which apparently you

developed for studying both pesticides and other organic

_ compounds. Is that correct?

DR. MAIBACH: Yes.

MR. ALEXANDER: If I can refer to one paper in

particular, which is called “Absorption of Organic Com-

pounds Through Skin in Man”, it contains several in-

teresting things, one of which, on this question of recov-

ery in urine, after IV administration, two compounds

which have some reasonable similarity to benzene, that is

[2478] dinitrochloro benzene, and nitro benzene, those

would be benzene compounds wiih some substitutions. In

those cases, something on the order of 60 percent was

recovered in the urine, and do I take it to mean that if

a similar situation occurred with respect to measuring

phenol, that we might be talking about an actual ab-

sorbed dose, something on the order of twice as much

as they were actually measuring?

DR. MAIBACH: Yes, that is a very easy question

to answer. If you measure—if I put some benzene on

my—if I put some melathion on my forehead, and if I

accounted for one percent of that being excreted in the

70

urine and stools, there could still be a very significant

underestimate.

If I didn’t know what happened when you put mela-

thion into the body to be sure that in fact you could find

it in the urine and stool, so we therefore correct or in-

complete excretion after foreheadal dose.

MR. ALEXANDER: I wonder next what the effect

of worker sweating would be on the absorption of a

compound. Is it likely to be increased?

DR. MAIBACH: Unfortunately we only have one ob-

jective documented study on this work we did with a

pesticide. It was either parathion or melathion, and it

is unpublished work, but I can provide the experimental

data. We found surprisingly no difference with the one

[2479] pesticide we studied and one anatomical site, in

one statistically significant experiment. The statistical

significance was we could show no difference.

MR. ALEXANDER: That is a-little bit surprising?

DR. MAIBACH: Like many things in membrane

transport, once you get the data, it is often very surpris-

ing. 7

MR. ALEXANDER: Based on that, do you have any

idea what the mechanism for the increased transport,

when you are using an occlusive dressing would be?

DR. MAIBACH: We have pat answers that we give

to students who are not very questioning. Do you want

those or do you want the real answer which is I am not

sure that we know?

MR. ALEXANDER: I wonder if some of the experi-

ments that are described were conducted at 25 degrees

Centigrade. I wonder if, for instance, in a working

environment where the temperature might be 40 degrees,

if that might have an effect to increase the transport.

DR. MAIBACH: If I understand your question, it

is two parts. One, does the occlusion—

MR. ALEXANDER: No, I am not talking about oc-

clusion. I am speaking about temperature.

DR. MAIBACH: There is every reason to believe on

the basis of invitro studies, that increasing [2480] tem-

perature will increase penetration, but again, as in all

of these things, that is going to have to be documented

with in vivo studies.

71

MR. ALEXANDER: How about the humidity? The

experiments described discuss 35 percent humidity. It is

relatively common to find an environment where the

humidity might be 70 percent or higher. What would

that do to the rate of transport?

DR. MAIBACH: I think that is going to have to be

measured in vivo before I will be comfortable enough to

answer.

MR. ALEXANDER: Now most of these experiments

relate to compounds applied to the forearm skin, and in

some of your published work, for instance, you say that

skin, such as the angle of the jaw or the face would have

a, based on the experiments that have been done, trans-

port factor some four times greater. Is that correct?

DR. MAIBACH: The chemicals that we have studied,

it is the general rule that the face is more permeable

than the forearm.

MR. ALEXANDER: And the back of the hand, com-

pared to the forearm, is perhaps twice as great?

DR. MAIBACH: We have very little data on that,

unfortunately.

MR. ALEXANDER: In one of your papers also, you

[2481] site an individual variation from person to per-

son of five times in the amount of a compound. I think

it was specifically pesticides absorbed. Do you have any

reason to suspect that same sort of variation might not

apply to the case of benzene?

DR. MAIBACH: I think we need the simple experi-

ment to answer that.

MR. ALEXANDER: You also talk about—I under-

stand the caution you are giving us about whether one

dose or multiple doses, but you mention, again, in your

paper, something about the effect that it is possible to

have sort of an overwhelming dose in which there may

be a linear relationship of absorption to concentration

to a certain point, and then much more of the compound

would be absorbed.

In the case, say, of a mechanic, who opens a pipe and

is inadvertently soaked in the stuff, might not that be a

case where you have this overwhelming event?

12

DR. MAIBACH: I don’t recall having made a state-

ment about overwhelming absorption. I wonder if you

could clarify that for me.

MR. ALEXANDER: No, I didn’t mean overwhelm-

ing absorption, I meant that there seems to be a rela-

tively linear relationship between concentration and ab-

sorption up to a certain point, and then after that, more

compound [2482] applied, a greater proportion of it

might go through the skin.

DR. MAIBACH: Okay, I understand now.

MR. ALEXANDER: I was just trying to give a prac-

tical application of this concept.

DR. MAIBACH: There are purported examples in

which the opposite occurs, namely at very high concen-

trations one gets less absorption thun one gets at lower

amounts, and I think you would have to obtain the data

to know what would happen with benzene.

MR. ALEXANDER: Now, as I understand it, your

standard protocol is to do a complete urine collection for

five days, and you report for several different compounds,

the pesticides for instance, half lives ranging from up

to 28 to 30 some odd hours. Now, as I understand it,

the standard practice would be to collect urine for at

least three half lives to be certain of a reasonable col-

lection over 90 percent, and based on that, since in the

experiments you report, there seems to be an incomplete

urine collection for a period of 24 hours, if in fact that

might not be a significant understatement or the total

absorbed dose.

DR. MAIBACH: One can plot that out mathematic-

ally, and we do, and in fact, on certain compounds, we

have collected as long as 20 days. Hexochlorophene is

one [2483] of them because of it’s slow, half life in

excretion. ‘

MR. ALEXANDER: Also, if I understand some of

your work correctly, you also speak about the fact that

various layers of the skin can act sort of as depots, stor-

age depots for the compound, and that this may explain

some of this delayed absorption, but in fact, the com-

pound may be stored in one or another of the layers,

only to be released very slowly later on. Is that a fair ©

representation of—

eg

73

DR. MAIBACH: As a general rule, I would nct know

if that would hold with something like benzene.

MR. ALEXANDER: I guess I just have a couple

more questions then. Again, in that paper that I was

referring to earlier, you mention on page 400 that three

compounds, possibly two toxic to test intraveneously in

man or administered instead intraperitoneally in guinea

pigs.

I wonder if you could tell us why you chose not to

administer those compounds to man. The compounds, I

believe, if I am reading correctly are butter yellow,

malathion, and methylcholanthrene.

DR. MAIBACH: Butter yellow we chose not to apply,

and I am thinking back a decade, and I would have to

look at my notes.

MR. ALEXANDER: I appreciate that.

[2484] DR. MAIBACH: Butter yellow is a low grade

carcinogen. Methylcholanthrene is the same, for the same

reason. Malathion has, we subsequently realized, to be

very easily administered to me intravenously, —

MR. ALEXANDER: So your concern with two of

those compounds, at least, was the possibility of their

having some carcinogenic risk.

DR. MAIBACH: Yes.

MR. ALEXANDER: Now, on page 11, your last com-

ment is that similar studies could be safely done in man

because the chemical and radiologic exposures are ex-

tremely small.

I wonder if based on this prior work of yours, and

if in fact benzene has a carcinogenic risk, whether or

not you might be concerned about conducting an experi-

ment of that sort.

DR. MAIBACH: Well, at the time we wrote this, we

were unaware of the fact that there is a very good animal

model now for this, and so I would be very happy to

run it as an animal model.

Secondly, we have learned a great deal more general

toxicology than we knew then, and would feel very com-

fortable about injecting tracer quantities into myself

for instance.

MR. ALEXANDER: The final question is, I [2485]

understand that these experiments are done on human

74

volunteers, and I wonder whether the protocol for such

a study has been submitted and approved by the human

experimentation—

DR. MAIBACH: For benzene?

MR. ALEXANDER: Of your medical school. ,

MR. MAIBACH: These experiments have, but not for

benzene. We have suggested in this that studies like this

should certainly be done for benzene, either in an i

propriate animal model, which would be the one of the

species, monkeys, that we have correlated data with

other compounds from animal to man, or certain—I sus-

pect that this would probably clear many committees for

the use because of the very small doses needed because of

the exquisiteness of the analytic methodology available

today.

MR. ALEXANDER: Thank you, Doctor. Thank you,

Your Honor.

JUDGE LAWRENCE: Do we have any further ques-

tions from the floor? Mr. Wodka?

MR. WODKA: Five minutes, Your Honor. Dr. Mai-

bach, the National Institute for Occupational Safety and

Health has placed into the record here a 1972 German

study by Hartwich. Are you familiar with that one?

DR. MAIBACH: May I take a look at it please?

MR. WODKA: Sure. Well, let me read to you [2486]

this part of it. I don’t have the entire study. I have

a reference to it. What they did was this, they found

an increased incidence of structural chromosomal ab-

errations in a group of nine refinery workers who did

not have clinical hematological or biochemical abnormali-

ties.

The concentrations of benzene measured in the in-

dividual outdoor working areas had at no time exceeded

25 parts per million. However, there had been prolonged

skin contact with benzene with all the workers, and I

would like to know if you think this observation is sig-

nificant?

DR. MAIBACH: I am afraid that I am not familiar

with that paper and would have to study it before I

would comment.

MR. WODKA: Let me just show you this. This is the

—one of the NIOSH references that was “Considera-

75

tions Bearing on the Question of Safe Concentrations of

Benzene in the Work Environment”, the MAK-WERT

paper.

DR. MAIBACH: Thank you.

MR. WODKA: I have just excerpted some of the—

DR. MAIBACH: I would be very happy to step out-

side and read it and return after I have studied it, but

I have not studied it before.

MR. WODKA: I just have one other question. [2487]

I have listened here to your oral presentation, and I

have noticed that in several places you stated that more

work is needed in order to explore the question of skin

absorption of benzene, and I think you expressed several

places where more research is needed, more tests need

to be done, and so on.

Don’t you think, therefore, that it would be prudent

for workers who are exposed to liquid benzene to wear

gloves, impervious gloves, during this period of time

while we don’t have all the data?

DR. MAIBACH: That is a very direct question and

the face, of it is so simplistic is to be silly, and I don’t

think you meant it that way. Obviously, it makes a

great deal of sense to protect all of us from all of the

risks of the world, and I, like motherhood, must endorse

it. However, I think the specific question that I am

addressing myself to here is that whoever makes these

standards does have a lot of practical issues to deal with,

and this is one practical issue which is perhaps the

most straightforward, namely how much of this ma-

terial goes through skin, it could be answered before this

committee’s deliberations are finished. We are talking

of a relatively short term experiment. In six to twelve

weeks, one could have an enormous amount of data that

could allow one to make some reasonable judgements

without having to resort to the [2488] motherhood type

of principle.

MR. WODKA: Well, I understand that, and I saw

that in your testimony, but my question is if I, as a

Union representative, came to you and said that I had a

group of workers exposed to liquid benzene, and I was

going to ask you, in your expert opinion, do you think

76

it would be prudent for me, as a Union representative,

to insure that these workers wear impervious gloves when

they handle up the benzene, what would you tell me?

DR. MAIBACH: I would tell you what I have been

told by the people, the Union people who speak to me,

and the workers who speak to me, and the State agencies

that speak to me, namely that you must preserve your

warnings with bothyyou and me, whether it Is smoking

or anything else, t6 the most relevant warnings, and so

I am saying that in the six weeks necessary to do these

experiments, you will have your answer.

I don’t think it is particularly effective to make a

generic warning for everything, because then I think

everything is disregarded.

MR. WODKA: So, in essence then, you would want

to conduct your experiments first before you give me

an answer?

DR. MAIBACH: I would like to, again, remove the

first person from that answer, saying that I would be

[2489] for you or anybody in this room who is inter-

“ested in doing it, the techniques are straightforward and

reliable,.and it/could be done by anybody having the

analytic facilities available.

MR. WODKA: Thank you.

JUDGE LAWRENCE: Anybody have any further—

MR. WODKA: Do you want to hold on to that?

JUDGE LAWRENCE: Do you want to answer that

question?

DR. MAIBACH: Would you like me to then write

you or go out in the hall?

MR. WODKA: You could write me.

DR. MAIBACH: Okay. Fine.

JUDGE'LAWRENCE: Do we have any further ques-

tions from the floor? \

MS. KALARIS: Dr. Maibach, would you submit your

opinion on that article for the record please?

DR. MAIBACH: Yes, I certainly will.

JUDGE LAWRENCE: Mr. VanVoorhees, do you have

any questions?

MR. VAN VORHEES: I have just one question, Dr.

Maibach. If an employee were wearing impermeable

17

clothing or gloves, and in the process of handling benzene,

liquid benzene got underneath the gloves, would that

increase the absorption potential of the benzene? |

[2490] DR. MAIBACH: If benzene is like other

chemicals that have been studied, and that must be

demonstrated, the occlusiveness of the glove would be a

very potent way of increasing penetration.

MR. VAN VOORHEES: I have no further questions.

JUDGE LAWRENCE: Thank you. Thank you very

much, Dr. Maibach. Mr. MacDonald, do you want to be

second?

[2701] DR. WILSON: The corrections I have to make

are mostly typographical. On page 18 of my testimony

on line three the word “most” is typed and it should have

been “worst”. It is “under the worst case”’.

On page 24—

MS. KALARIS: Would you go a little bit slower,

please?

[2702] DR. WILSON: Page 18 there is a typo and

line three. It should be, “suggests that benzene is at

worst a weak mutagen,” not “at most”’.

MS. KALARIS: Yes.

DR. WILSON: On page 24, in the various tables,

in all of these tables, that should read, for example,

on page 24, it should read on the first number, it should

be 10 to the power of minus 6. The minus 6 is put on the

same line as the 10 in all of these typings and it should

be read as a superscript.

On page 25, the third entry in the table, it is incor-

rectly typed. It should read five times 10-*.

On page 29, line nine, there is a correction because

here I was referring to the draft study, the Arthur D.

Little, which was done for OSHA, and the final study

has slightly different numbers in it. So that I will have

to correct these statements here.

On line nine it said “Calculated in the above OSHA

study,” it is $75 million for 12 months plus $250 mil-

lion capital cost, which, if I amortize at 10 percent,

corrected for inflation, it gives a total of $100 million

a year.

78

Then I would go on, “Corresponding to a cost of

$300 million for every hypothetical life saved”. Those

are the corrections, the ones that I found.

[2703] I will give you a brief summary and try and

put this in the framework that has already been men-

tioned. I would like to—well, I want to point out in my

testimony what I believe is a necessity of making a risk

estimate in any situation involving either the workplace

or an environment, whether it is a carcinogen or not.

It seems to me that,anyone who claims that benzene

is a leukemogen or a ¢arcinogen must put numbers into

a statement and preferably numbers into the dose so that

that automatically will give him some estimate of a risk

no matter how r gh it is‘and peoples’ reluctance to make

‘this estimate is’ in some sénses, to my mind, synonymous

with a reluctance to believe that benzene is in fact a

carcinogen.

Likewise, I believe that it should not make much dif-

ference to OSHA action whether benzene is found to be

a carcinogen or not or merely a suspected carcinogen.

OSHA, in its regulations, should be careful if it is a sus-

pected carcinogen and should put reasonable limits on

the dosage.

If it is found to be a carcinogen, there is no reason,

in my view, and I can’t see anything in the law either,

that there should be a sudden switch in what it does

and even though the emergency standard, the proposed

emergency standard, in the preamble, said something

about [2704] having to reduce to zero emissions, I be-

lieve that is not reasonable and one should make a risk

estimate in both cases in order to properly protect the

worker and if one insists on too low a risk, then one is

not protecting other workers enough because one may be

spending too much on protecting that one group and

without any benefit to that group.

Now. the dominant .feature, it seems to me, in the

emergency standard as promulgated and as I have heard

just a little bit of the questioning is the failure of OSHA

to put numbers into a risk and to state what relation

this proposed standard has to public health and par-

ticularly to health of the workers.

79

Without such a relation I don’t quite see how one

can usefully make a new standard.

Also, I want to emphasize that there seems to be

no emergency involved here. We have been using benzene

for 50 years. Indeed, we were using it at those levels far

higher than we are now using it. There have been no

dramatic cases of leukemia that have been standing out

all over the place and in fact, as the evidence has shown,

it is hard to prove that the cases of leukemia that have

been seen are indeed attributable to benzene.

Therefore, a short delay, while we try and understand

the situation, should not have catastrophic [2705] sig-

nificance. This is not a new chemical and it should not

be treated as such.

An emphasis has been placed on a simple yes or no on

whether it is carcinogenic or not. This by itself I be-

lieve is nonsense, particularly in today’s framework. 30

years ago when you had three carcinogens, radiation,

cigarette smoking, and beta-naphthalamene, I think.

Now we have about 150 known human carcinogens and

1,000 animal carcinogens and if we were able to look with

human beings with the sensitivity we can look in animal

experiments, most of these animal carcinogens would,

I think, be found to be human carcinogens.

Yet, the laws of science haven’t changed. These things

haven’t suddenly become carcinogens. They were carcino-

gens before. That is just what they are now.

I suspect that if we improve our techniques we will

find more suspected animal carcinogens and we have to

be careful about that.

We can put them on a scale now and in fact table

C of my testimony I put such a testimony which came

from a paper of Mr. Meselson and I put some limits of

benzene on that scale. We will see that at a worst it is

a very weak carcinogen compared with the strong ones

that we know how to deal with. We have examples. It

is also a weak mutagen.

[2706] On a direct carcinogen, which we have heard

about, mutagenesis, carcinogenesis, are usually related,

and that was the point, of course, of Meselson’s paper.

Benzene is at least 100,000 times weaker than aflatoxin

80

us a carcinogen. Aflatoxin we regularly eat with the

peanuts offered on American Airlines and Allegany Air-

lines and so on, and even available in the FDA cafeteria.

It is also a thousand times weaker than benzoapyrine

which we regularly pour at our workplace and environ-

ments and kitchens and fossil fuel burning, from our

ears and from charcoal burning foods.

Even if benzene is found to be a carcinogen in the

end, at the level of the limits I took, I believe that

OSHA should tackle the bigger hazard first. If indeed

it is correct that OSHA wants to have a policy of stop-

ping all carcinogens, they should stop smoking in the

workplace, particularly all hearing rooms, OSHA cafe-

terias, and anywhere where people work.

They should also stop people working anywhere within

a quarter of a mile of a car so that we don’t have—

which can be done. It is quite feasible. Maybe we should

wear gas masks. I worked several days with a gas mask

in the second world war as an air raid warden. For-

tunately only in practice.

It is possible for us all to wear gas masks in [2707]

the cities and it is feasible and that might be the tech-

nical meaning of the Act.

However, I think the right thing to do is to evaluate

the risk, see if the risk is sensible. It is indeed, as I

can testify. Wearing a gas mask does reduce one’s avail-

ability to do work. I have done it in order to show that

I could carry out my duties as an air raid warden while

still wearing a gas mask. It was possible but a lot harder.

Moreover, you know, we can measure these substances

and control them better than ever before. 30 years ago

if we found a substance that was found to be carcinogenic

it was not only potent but it was present’ in high con-

centrations.

The sort of policy that OSHA seems to be talking about

today might have made sense 30 years ago. Nowadays

we are finding weak carcinogens. We are finding them

in low concentrations. To make an absolute statement,

it is a carcinogen or not and making a change in rules

in accordance is to my mind wrong.

81

So that we have to do—now early in the hearing Pro-

fessor Zeckhauser testified and he quite correctly re-

jected putting a value on human life and his way of

talking about cost effectiveness analysis. In my testi-

mony I gave an example of how on a reasonable basis,

pessimistic [2708] basis, on how benzene might be a

carcinogen, this proposed standard, using the Arthur D.

Little study, will cost about $300 million for every hy-

pothetical life saved.

Spending that $300 million is not done without a waste

of life. We know that every time you build a building

lives are spent, about one for every $20 million spent in

construction. Now, that $300 million won’t all be in con-

struction but a rough estimate suggests that the $300

million, three other lives will be lost. So for saving one

hypothetical one we will have spent three. I believe that

1s not correct.

Now, the question therefore is we have to have a

yardstick in order to compare risks and benefits. The

public interest lobbying organization called The Federa-

tion of American Scientists in a study of carcinogenesis

a year ago called for such a yardstick.

The Federal Register on May the 22nd last year

Russell Train, Director of EPA, said one should com-

pare risks and benefits and said that is what they were

supposed to do and mentioned it was the new change in

policy. I hope they follow it.

It has been said—so, I think that is what OSHA

should be trying to do in the hearing and unfortunately,

it didn’t come in the preamble to the proposed state-

ment. The risk analysis that I try and present and the

comparison [2709] with other testimony are rough ones

because, as we have heard, the data on possible carcino-

genesis is rather rough.

gigs I think it is about the best one knows how

0 do.

So on the—if we take this conservative hypothesis one

would then come to a feeling, I would come to a feeling,

that although there may be some, a more careful study

might show it in some places, one could reduce this

standard below 10 parts per million without this huge

expenditure which is in the Arthur D. Little report.

82

neidentally, I would point out that is not an industry

be It “age Gait heanelnieaed report. One would

normally expect industry to be more pessimistic about

how much it costs and an OSHA-commissioned report to

be more optimistic. But this is the OSHA one.

So, in the Arthur D. Little report they do mention

something in the latest copy about the possible benefits

of this. But only in extremely rough terms. They make

no estimate about making a risk study, no attempt to

compare these risks with any other risks in society so as

to give one perspective, and so that I believe this is a

major defect in that Arthur D. Little study and in that

I completely agree with Dr. Zeckhauser that these defects,

although omissions in the Arthur D. Little study, are so

(2710] great that some of the details which he and other

people were also concerned about in that study are com-

tively irrelevant.

nl ee to make one more comment. The Arthur D.

Little study comments that the OSHA policy is that

putting dollar costs on risks is arbitrary. I would cer-

tainly agree it is somewhat arbitrary. It is, however,

done, as Dr. Zeckhauser commented in his testimony and

I would just add on one more place where it has been

suggested, and that is in the Nuclear Regulatory Com-

mission hearings, the so-called “as low as practicable

hearings” which lasted a period of two to three years

and was finally ruled on last year where they suggested

$1,000 for a man-rem of exposure which has a possible

level below which one should reduce radiation exposure.

They reached this by taking the most conservative

number that anyone had suggested to them and rounding

it on upwards to be as safe as possible. If you take the

same linear projection on cancer incidence that I took

in my study, this corresponds to a number roughly of

$10 million every hypothetical life saved and that is

somewhat less than $300 million which I estimate that

this proposed OSHA standard would take, according to

the Arthur D. Little study.

So that I believe, in fact, that such numbers have

[2711] been done in the Government, should be done

again, in fact, should be done very much more than they

have been in the past.

SE ~~

83

JUDGE LAWRENCE: Thank you, Dr. Wilson. Off

the record.

(Off the record discussion. )

MS. KALARIS: I would like to advise everybody

that we have in the back copies of page four, page five,

page eight and page 10 of Professor Wilson’s presenta-

tion.

JUDGE LAWRENCE: Page 30.

MS. KALARIS: Oh, that is page 30 of Professor

Wilson’s statement. Those pages were missing from

some of the copies obtained through the Technical Data

Center. So if you need them, they are out there in the

back.

JUDGE LAWRENCE: All right, any further busi-

ness? All right, there being nothing further, the hear-

ing stands adjourned and we will resume tomorrow morn-

ing at 8:30 a.m. Thank you very much.

* * * +

[2721] MS. KALARIS: Would you explain please what

you mean by a weak carcinogen?

DR. WILSON: Yes. If we look at my Figure 3 in

my testimony, this comes from the work of a colleague

of mine, Matthew Meselson at Harvard University. Now

he was very much impressed, as a lot of people have

been, that in a very large number of carcinogens, which

were found to be animal carcinogens, there is a direct

proportic-al relationship between the ability of this

chemical to produce revertance in a mutagenic test of

the type of Bruce Ames at the University of California.

The relationship between if you do a study on animals

where you do a lifetime study of feeding of this particular

carcinogen, and this graph is taking to those cases where

a lifetime study is available on animals, and there is also

a mutagenic study available.

It is quite significant in my mind that over a range

of approximately 10,000, some chemicals produce more

[2722] mutation activities than others by a factor of 10

to 100,000. Those same chemicals that are more potent

in producing mutations are also more potent in producing

cancer.

84

For example, on this curve the most potent one on the

curve, I am not sure it is the most potent carcinogen we

have—I don’t think so, is aflatoxin B, That is in very

small quantities it is known to produce cancer in animals.

Two parts per billion will cause according to the NIT

of that study by Jerry Wogan, will give 10 percent of the

rats cancer. Whereas if you do similar tests, for ex-

ample, on benzopyrene, whereas a test here is on Chinese

hamsters, you would find you would have to have a 30

to 40 times the concentration of the chemical to get the

same number of rats dying. If you do the same test on

saccharine, you will up the curve at the top right hand

corner, you will have to have a dose of 7'% percent of

saccharine in the diet, fed continuously, in order to pro-

duce 15 percent cancers.

So there is a very wide range, well over 100,000 into

the factor between the potency of some carcinogens and

others. These are, I would like to note, what one might

call direct carcinogens.

If benzene is a direct carcinogen, I put on this graph

where it might lie because if it is a direct carcinogen, it

would presumably show up on an Ames Test. It hasn’t

[2723] according to the information I have from the peo-

ple in Bruce Ames’ lab. It has been tested, and they

haven’t found anything. They haven’t found anything, I

don’t accept a yes or no as an answer to this sort of

question. :

[2732] MS. KALARIS: How do you define an insig-

nificant risk, Dr. Wilson?

DR. WILSON: Oh, the only way of regarding a risk

as insignificant, in my view, is very much a personal

question, and it has to be by comparison with others.

That is why I have always, in my own mind, I have not

been content with calculating risks of anything until I

have compared it with something else. Something else

particularly without getting involved with personally if

possible and something else which I can calculate on as

nearly as similar basis as possible. Then if one risk is

very much smailer than the other, say it was less than

10 percent, then I would tend to regard it as insignificant.

85

MS. KALARIS: On Table I you have calculated risks

for certain occurrences.

DR. WILSON: Table I? Yes, there it is.

MS. KALARIS: All right. What relevancy does that

sampling of ris have to the risk of developing leukemia

from occupational exposure to benzene?

[2733] DR. WILSON: That has less relevancy than

some of the later tables, but it—incidentally I have just

realized there is a misprint on line 2 of that, my division

can’t possibly be correct. Excuse me, I have line 2 with a

risk from falls of 17,000 people must be 9 times 10-° and

not 9 times 10°°. I must beg your pardon because it is

clearly the total number divided by.

The relevancy, to go back to the relevancy question,

these are risks which various elements are exposed to it

in various ways. Some are exposed to some and some are

exposed to the other. I personally try to avoid the risk of

firearms, I am never able to avoid the motor vehicles or

the falls or the fires or the eletrocution for example.

Those are risks to which we are all exposed to in life.

Now I would normally, the two aspects of which this is a

risk we ought to expose to whether we work on a subject

or not. If benzene work on an ordinary person, you would

have that risk.

Now risk of benzene is a risk in the working place.

A risk that is usually accepted, and I would think it

reasonable to continue, that if a limited number of people

in a limited occupation can be exposed to slightly higher

risk due to that occupation, than the general public.

There are a wide number of cases; otherwise without that

you would clearly have the obvious cases, climbing a scaf-

fold, [2734] fix a building. That is clearly a very risky

thing to do. You clearly stop the general public from

doing it, you don’t let them get up there. But you none-

theless ask a worker to do it. So that is not directly

applicable to worker, but it is so that should in general

those risks that you would expect you would allow a

worker have a sightly larger risk than those ones that he

is generally exposed to in that sense.

But those are just to give a perspective and nothing

much else.

86

MS. KALARIS: Thank you.

(Pause)

MS. KALARIS: Isn’t the significance of a risk rela-

tive? For example, in your written testimony, you cite

the example of no one reasonably worrying ®>dout being

killed in a hurricane. Now this might be true in the

United States, but it may not be true in another country

where hurricanes are an annual hazard. So isn’t it a

question of selection of priorities?

DR. WILSON: Oh, absolutely. Risk is certainly right

to question. Of course, there are numbers on hurricanes

in the United States which is also very important to note

that although a hurricane is widely defined to be an act

of God and of course in that sense it is. Nonetheless you

can protect against it and reduce your risk, and a [2735]

cautious person would look, in fact it is quite notable the

people who calculate risks in this business of calculating

risks, calculating them will in fact start avoiding hurri-

canes and choosing their airlines rather carefully and

so on.

MS. KALARIS: Would you agree, then, if one’s prime

objective is to protect as many workers as possible, one

may not be willing to accept a risk which entails a few

workers being exposed to a hazard?

DR. WILSON: I am sorry, I don’t understand the

question.

MS. KALARIS: We said that, if I understood you

correctly, you agreed that risks are relative.

DR. WILSON: Correct.

MS. KALARIS: Ok. If one’s primary objective is

to protect as many workers as possible from a particular

risk, one may not be willing to accept the risk which

entails few workers being exposed to the hazard. In that

case doesn’t the risk become a significant risk rather than

an insignificant one?

DR. WILSON: I am still not quite sure to understand

it but let me try to answer and see if I have got it

correctly.

There is a prime objective for protecting human life,

that is correct. In the framework of this hearing, [2736]

re

87

one can talk about that limit that particular groups of

people who are working people. Now indeed risk is a

variable question and as I said, it is somewhat an in-

dividual question. It is important not only to make sure

that the risk to all of society be s

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