# Appendix — C.P. Chemical Co. v. Commissioner of Public Health

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 923

## Text

83-333

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1983 ©
©)

C.P. CHEMICAL COMPANY, INC., Appellant, ake
V. 7
COMMISSIONER OF PUBLIC HEALTH, Appellee. Gq?

ON APPEAL FROM THE MASSACHUSETTS SUPREME JUDICIAL COURT

APPELLANT'S PARTIAL APPENDIX

7 Joseph Semo *
$ Glenn M.
Clifford J. Zatz

Jeffrey K. Sherwood

SEIFMAN, SEMO & SLEVIN, P.C.
1000 Potomac Street, N.W.

Suite 204

INDEX TO PARTIAL APPENDIX

Tab

Findings, Rulings, and Order of the

Superior Court for the County of

Suffolk, Massachusetts D
The Summary of the Evidence and Findings

and Conclusions Concerning Formaldehyde

and UFFI of the Massachusetts Commissioner ©

of Public Health
C.P. Chemical Company, Inc.'s Petition for

Rehearing before the Massachusetts Supreme

Judicial Court F
The Supreme Judicial Court's Denial of C.P. Chemical

Company, Inc.'s Petition for Rehearing G
Memorandum to Local Board of Health from

David Kinloch, M.D., Deputy Commissioner,

Mass. State Dept. of Public Health H
Letter to David Kinloch and Lawrence Buxbaum I
Superior Court Trial Exhibit 52 J

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COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT
Nes. 38,508-38,473
41840,49725, 46687
BORDEN, ET ALS
VS.

COMMISSIONER OF PUBLIC HEALTH

FINDINGS, "PULINGS +} ORDER
STATEMENT OF THE CASE

These cases were previously consolidated and’ were the subject of a
protracted viaL Each case involves the common issue, i.e. the validity of
certain regulations promulgated by the Commissioner of Public Health. The
first set of regulations is entitied "Regulations Concerning Hazardous
Substances" and was issued on November 14, 1979. The second set is entitled
"Regulations Concerning Repurchase of Banned Hazardous Substances” and that set
of regulations was issued on November 20, 1930.

Briefly stated, the Commissioner bans all residential future sales of urea
icomaldenyde toamed- in- place insulation (hereinafter UFFI); and creates an
acministrative procedure whereby homeowners who have suffered any of certain
symptoms may secure an order from the Department of Public Health requiring the
installer, distributor, or manufacturer to remove it, refund the purchase price and
restore the heme. The cost of removal and restoration is very significant.

In Suffolk numbers 38508 and 38673, Borden and C.P. Chemical, two
manufacturers, many contentions are made. First, regulation invalidity because of
failure to afford an adjudicatory hearing. This contention is grounded in statutory
construction as well as constitutional principles. Second, if che plaintiffs were not
snuitled to a prior gadjudicatory hearing, then, as a matter of right, they are

entitled to a judicial review-not limited to any agency record.

In this argument they are joined by the Formaldehyde Institute in Suffolk $1340.

The focus of Berkshire Gas (49725) as well es the Anderson case (46647) is
solely upon the repurciase regulations and upon the significant [abilities that they
will sustain if these regulations are upheld. However, these plaintiffs share with
the manufacturers, at least as to repurchase, the contention that an adjudicatory
hearing prior to the regulation is required and they also share the contention of
constitutional due process deprivation. All and each of the plaintitts have
advanced numerous other contentions.

Discussion

Certain initial observations seem appropriate. 5ecause of the factual
complexity, the findings of fact have been divided under particular headings to
permit an easier understanding by the parties and examination by an appellate
reviewer. With respect to the rulings of law I have attempted to avoid any

extended discussion but this was not always possible.

FINDINGS OF FACT
I
PARTIES

L Plaintiff, Formaldehyde Institute, is a voluntary association comprised of
some 62 companies who manufacture or use formaldehyde or formaldehyde-based
materials. The Formaldehyde Institute operates through several committees,
inciuding a Medical C:, mittee and a Technical Committee. The principal. offices
of the Formaldehyde Institute are located in Scarsdale, New York.

2. Plaintiff Dodge Chemical Company ("Dodge Chemical"), is a corporation
duly organized under the laws of the Commonweaith of Massachusetts with its
principal place of business located in Cambridge, Middlesex County, Massachusetss.
Dedge Chernical is engaged in the manufacturing, sale and distribution of
embalming chemicals. Dodge Chemical is a user of formaldehyde and is a member
of the Formaldehyde Institute.

3. Plaintiff, Hardwood Plywood Manufacturers Association ("HPMA"), is a
corperation duly organized under the laws of the State of Illinois with principal
offices in Reston, Virginia. HPMA is a national trade association composed of
some 170 companies manufacturing building supplies such as hardwood plywood and
suppiiers té6 mat incustry. The products manufactured, such as plywood, contain
formaldehyde and formaidehyde-besed resins. Members of HPMA do business in
Massachusetts. HPMA is a member of the Formaldehyde Institute.

&. Plaintiff, E.L du Pont, de Nemours and Company ("DU PONT"), is a
corporation duly organized under the laws of the State of Delaware with principal
effices in Wilmington, Delaware. DU PONT manuéactures and seils formaidehyde

*je-

and formaldehyde-besed products such as paint and plastics. DU PONT does
business in the Commonwealth of Massachusetts and has offices in the
Commonwealth. OU PONT is a member.of the Formaldehyde Institute.

_5. Plaintiff, Celanese Chemical Conpeny, Inc. ("Celanese"), is a

corporation duly organized under the laws of the State of Texas with principal
offices in Dallas, Texas. Celanese manufactures formaldehyde. Celanese does
business in the Commonwealth and has offices in the Commonwealth. Celanese is
a member of the Formaldehyde Institute.
. 6. Champion International Corporation ("Champion") is a corporation duly
organized under the laws of the State of New York with principal offices in
Stamford, Connecticut. Champion manufactures and sells building materials.and
paper products, many of which contain formaldehyde and formaldehyde-based
resins. Champion does business in the Commonwealth and has offices here.
Champion is a member of the Formaldehyde Institute.

7. The Manufactured Housing Institute, Inc. ("MHI") is a non-profit
corporation duly organized under the laws of the State of Ilinois with principal
offices in Arlington, Virginia. MHI is a national trade association of manufacturers
of mobile homes and suppliers to that industry... Formaldehyde and urea
formaldehyde-based resins are used to manufacture products, such as
particleboard, used in the manufacture of mobile homies a well as in site-duilt

x yt nial Memoers iil Gy Lualvess er Massachusetts. MST is e member af the Batre
Formaldehyde Institute.

3 Plaintiff, Georgia-Pacific Corporation (“Georgia-Pacific”), is a
corporation duly organized under the laws of the State of Georgia with principal
offices in Portiand, Oregon. Georgia-Pacific manufactures building materials and i
paper products, many ef which contain formaidehyde-based resins.

;

: —

Georgia-Pacific is a member of the Formaldehyde Institute.

9. Plaintiff, Weyerhaeuser Company ("Weyerhaeuser"), is a corporation duly
organized under the laws of the State of Washington with. principal offices in
Tacoma, Washington. Weyerhaeuser manufactures building materials and paper
products including building materials containing urea formaldehyde resins.
Weyerhaeuser does business in Massachusetts and has offices. in Massachusetts.
Weyerhaeuser is a member of the Formaldehyde Institute.

10. Plaintiff, Borden, Ine. ("Borden"), is a corporation duly organized under
che laws of the State of New Jersey with principal offices in Columbus, Ohio.
Serden manufactures formaldehyde. In addition, Borden manufactured the
components for a urea formaldehyde foamed-in-place insulation ("UFFI") sold in
‘Aassachusetts under the registered trademark, Insulspray. Borden ceased
manicacturing UFFI in the United States on December 31, 1978.

i. C. P. Chemical Company ("C.P. Checmical") is a family-owned and
conwollied small business enterprise, located in White Plains, New York, which
maenutaccures, among cther items, the resin and foaming agent for a series of foam
imsulaticn products marketed under the name of Tripolymer.

12 Plaintiff Anderson Foam Distributors is a Massachusetts Corporation
having an usual place of business in Abington, and has been in the business of
S-sualling insulation in both residential and commercial structures.

13. Plaintiff Berkshire Gas Company is a Massachusetts Corporation, a
pubic udlity serving the western portion of the state and which purchased UFFI
and contracted with many of its customers, and others, to install the insulation in

Tes hemes.

jt, The sole defendant Alfred L, Prechetts is the duly. appointed
Ssxmidsioner ef the Department of Public Hedith ‘fer the Cammonwealtr of .
‘A assachusetts. > | re fe

I!

THE NATURE AND- PRESENCE OF FORMALDEHYDE

Formaldehyde, a colorless, gaseous compound of carbon,
hydrogen and oxygen (HCHO), {s omni-present. It is found in
the atmosphere, where it is continuously introduced through a
variety-‘of natural processes. When sunlight strikes plant life,
there {is a photochemical generation, and formaldehydes and other
aldehydes are directly released into the air. These are rapidly
reacting molecular products. Because of a high water solubility,
formaldehyde is transferred in rain, surface water and oceans.
This. reactivity is, however, indicative of a short life span in
an irradiated lower atmosphere. It is biodegradable.

Man also injects formaldehyde directly into the atmosphere.
Approximately six pounds of formaldehyde is produced during the
combustion of 1,000 pounds of automobile gasoline, and the exhausts
of automobiles measured during operation have registered discharge
_ Of twenty-nine to forty-three parts formaldehyde per million parts
of air. Also, formaldehyde is emitted from many manufacturing,
industrial and power plants. Indeed, it is a by-product of any
machine or other burning in which hydrocarbon fuels or substances
,. are incompletely burned. Therefore, even the home gas stove or
the use of cooking oils will produce free formaldehyde. In sum,
aldehydes are introduced into the ambient air as a result of

photoxidation.. of both naturally occurring and anthropogenic

hydrocarbons.

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: alcehyde usually consisting of between a third and three-fourths

: @tmosphere, formaldehyde hes been measured at levels ranging
| from .005 to .008 in rural ambient air, to levels ranging up

' $0 .2 parts per million in urban outdoor air.

i of formaldehydes and other aldehydes (formaldehyde is the sail

Formaldehyde is present in certain fruits and vegetables;
Zor example, apples and potatoes.

Additionally, formaldehyce 4s found in all mammals, and
specifically within the human body. It is-one of the substances
produced by the human system during metabolism, although it does
act accumulate, but is rapidly metabolized. Persons who smoke
introduce significant levels of formaldehyde, up te forty parts

per million, in their immediate environment.

Therefore, in any environment, there are ambient concentrati

of the aggregate present) and these concentrations depend on
Sscch their rates of formation and the-:subsequent penevel
seactions that occur, Obviously, urban atmosphere concentrations
arte generail appreciably greater than rural areas. These
concentrations are usually measured on @ part per million parts
of ambient air basis. In most in-door environments, twenty-four
hour average formaldehyde concentrations of 0,05 to 0.2 per

million parts are not uncommon today. With respect to the

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| formaldehyde resins. These resins were developed in Europe where

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THE NATURE OF AND PRESENT COMMERCIAL
SIGNIFICANCE OF UREA FORMALDEHYDE RESIN

Commercially, aldehydes are produced at a rate of several
billion pounds a year in the United States. Formaldehyde is
the most commercially significant and is prepared in a thirty-
seven to fifty percent aqueous solution at a rate of over
eight (8) billion pounds a year. About half of that production
ts used in the preparation of wrea formaldehyde and phenol

the condensation reaction between urea and formaldehyde was
reported tefore the year 1900.
These resins are used in the production of plywood, perticle-
board, foam insulation, and a wide variety of molded or extruded
plastic ati. Another twenty-five percent of the formaldehyde
produced is used in other resins or polymers, end is used in
disinfectants, textile treatment agents, and in leather
processing and dye manufacture. A partial list of presently
manufactured products in common use in, which a formaldehyde”
polymer is utilized includes Se fungicides, clothing,
cleansers, textiles, waterproofing, fur, wood and leather
preservers, lacquers, varnishes, papers, film, glues and

adhesives, dyes, drugs, ladies' cosmetics and deodorants.

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- —© homes, since the foam can enter through a small opening

' and be delivered to the entize area of any given cavity. It is

relatively inexpensive, with the everage cost for the average

seven-room house being $1,200 to $1,400, and has excellent
insulating qualities. It is relatively nonflammable. The
National Aeronautic. and Space Administration (NASA) selected
Tripolymer, a foamed insulation, in a prototype solar house and
found it to be nonflammable, nontoxic, rodent resistant and odor
free with a 30 to 45 percent less heat loss than fiberglass
insulation. A fuel cost saving of 47 percent was demonstrated
after another Tripolymer insulation by a Housing and Urban
Development (HUD) study.

There are, however, certain disadvantages. The amount of
formaldehyde added to the mixturets:ctttical. “First, “the: more
formaldehyde the faster polymerization, which in turn increases’,
stability of the product and lowers its manufacturing costs.
Adequate formaldehyde is vital to provide sufficient cross-linking
sO @s to cause satisfactory stabilizing properties in the Final
product. However, any excess in formaldehyde results in unreacted
formaldehyde in the final product. This free formaldehyde tends
. to slowly diffuse from the insulation foam and may result in in-
creasing the indoor air formaldehyde concentration. Most urea
formaldehyde resins used in the manufacture of UFFI‘s contain
only less than .5 percent formaldehyde by weight, and contains
less than .01 percent formaldehyde by volume.

_ .

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In addition to unreacted formaldehyde, urea formaldehyde
foam is subject to hydrolysis. Essentially, the hydrolysis
reaction is a reversal process. When the insulation of resins
are exposed to water or a humid atmosphere, the UFFI may absorb
moisture, and consequently, a process of degradation which
releases formaldehyde follows. For example a methylol end group
(NHCH, -N-CH#) subjected to moisture (+H50) by hydrolysis result-
ing ( =NHCH5+CH,0) a release of formaldehyde. Since urea formaldehyde
resins are utilized in chipboards, particleboard and plywood, these
products also are subject to hydrolysis, and may also emit
formaldehyde. Indeed, the same is true of many formaldehyde
polymers. However, focusing on UFFI, it is obvious that the in-
stallation must be proper in al) respects of mix and formulation.
If excessive foaming agent is used, or if there is excessive
acid catalyst fn the surfactant, the result is as bad as use of
excessive resin. The process by which excessive acidity contri-
Dutes to the potential for formaldehyde emission is by breaking
she bonds attaching the single end formaldehyde molecule to the
chemical chain of the compound. Another common factar which
contributes to the potential for emission of formaldehyde from
UFFI is the addition of excessive acid foaming agent hardener
Sy the installer. At least a substantial portion of the emission
problem can be attributed to poor instaliation techniques or

improper use of materials.

«13 «

Foaming with cold chemicals, or foaming during a period of
high humidity also are factors which may constitute contributing
causes to formaldehyde release. |

Of course, any free formaldehyde that is present in UFFI
is not necessarily emitted from UFFI into the interior of the
house because it may remain in the interior of the foam, it may
be “trapped” within the air bubbles or captured by various
ingredients with the potential for minimizing formaldehyde
emissions which:'are added to the UFFI for that reason and,
because, lastly, if emitted from the foam, it may be emitted

into the outdoor ambient air.

Vv

FINDINGS CONCERNING TWO PARTICULAR UFFI
PRODUCTS, INSULSPRAY AND TRIPOLYMER

Two particular foam insulations were the subject of
evidentiary focus in the present proceedings. This was not
the case at the time of the Administrative Hearings which
preceded the ban.

“Insulspray", so-called, is the trade name for Borden's
patented UFFI. This product was developed in a joint venture
between a Sorden affiliate and the Canadian Government.

_ Insulspray added a eerteia number of ingredients, including ;
resorcinol, dicyandiarmide and ethylene glycol to reduce the.
potential for formaldehyde emission or “off-sgasing".
Resorcinol, in particular, acts as a scavenger to react with

free oz freed formaldehyde. Insulspray was distributed in
Massachusetts by cne independent distributer to approximately
twenty to thirty installers. Some 1,260 Massachusetts homes

have been insulated with Insulspray. That Insulspray was
withdrawn ¢rom the American Market in 1978 or 1979.

"Tripolymer", so-called, is the trade name for C. P.
Chemical's patented phenol urea foam. The resin and foaming -
agent are manufactured in White Plains, New York. C. P. Chemical

Z is not a UFFI. The combining of phenol

contends that its produ

with methylol urea significantly increases the stability of
Tripolymer becausa many more methylene bonds are formed and
significantly less hydroxyl methylol bonds are produced.
Therefore, the potential for formaldehyde emission by hydrolysis
is much lessened. This inewedemien of phenol, however, does not
sc drastically alter the resultant structcre, physical properties
and characteristics so as to take it outside of the UFFl family
in the generic sense. This is- so because the formaldehyde release
mechanisms are the same, even though it must be conceced that

; Tripolymer is a more stable compound than certain other UFFI
products. The ‘free formaldehyde content in Tripolymer 102 is
0.08 percent and in the 105 resin less than .0001, the lcwest
sensitivity range of the accepted HUD test measuring procedure.
Tripolymer was distributed within this Commonwealth by shipping
to.Cc. P. of New England in New Hampshire, which in turn distribute
to the five installers that it had certified in Massachusetts.
Some 863 homes in Massachusetts were Tripclymer insulated. There
was one complaint ‘made.

Both Borden and C. P. Chemical have certain quality controls
which are utilized in connection with their vuapeetion products.
Bcth have quali ty control procedures soverning the manufacture
,

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an independent inspection program by which Factory Mutual Research

. Special nezzles end certain pressure gauges guarentes consistency)

| makes random monitorings of both resin and foaming agent, checking
i wiscosity, acidity and solubility, while Borden manufacturing

includes tests by two independent laboratories. Insulspray

installers are selected and trained by its-distributors. This
craining encompasses a five-day pericd involving beth classroom
and hands on trainings, as well as ieicehe aot experience. All
Borden installers are instructed to conduct periodic Gensity
tests of both the flow rate of resin and foeming agent and
cesting fcr quality of fcam. Borden representatives conduct
sporatic jot site spot checks. C. FP. Chemical euetns each
installer itself and requires its certification as a prerequisite
to selling its product to any installer. Its training program.
is four to five days at its plant (or over four or five weeks at
various job sites). Each prospective installer must pass a
written examination and foaming test prior to certification. All
installers are directed to undertake wet density quality control
checks every twenty to thirty minutes during actual installation
eof the fcan.

Both Sorden end C. P. Chemical have patented foam mixing
"guns" so-called. It is in these devises that the resin fceming

agent, end air are combined end the foam expelled under pressure.

of mix and flow. Additionally, C. 2. Chemical hes in line

heaters to maintain correct fcaming temperatures for its

, ingredients. C. P,, which leases its gun and pumping system,

provides 2 scheduled maintenance for these systems as well.

Pricr to the tan in Massachusetts, Tripolymer 102 had been

talled in 50,000 homes over these United States with a complain

rate of twenty-six hundredths of one percent. Tripolymer 105,
which is the product C. P. Chemical currently markets, has been
installed in 5,330 homes with no complaints to date.

The administrative hearings did not consider any specific
product, but rather treated all the foam products generically; —
alluding generally to the "Chemical Composition of UFFI" on
pases 5 and 6 of the Commiss:.oner's finding, and declaring 2
banned hazardous substance “Urea-formaldehyde fondle place
insulation" without ever attempting to define tt, See 105 CYR

650.020.

From the evidence produced at trial, I find,insofar as it
is a question of fact, that Tripvolymer insulation, if subjected
to proper regulations has the capacity to be installed so as to
eliminate or ctre any vapor problem that has been experienced in

derance 7f that

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evidence that regulations regarding quality product control, li-

: censure, ané standards for installation may be’reasonably ‘ash-

' tened which would permit a urea formaidehyde of the Insulspray

type to be safely used.

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MEASUREMENT OF FORMALDEHYDE
AND WITHIN UFFI HOMES

The measurement of formaldehyde levels within any particular
environment is best established by what is ‘called the chromotropic
acid test which records the parts of formaldehyde per militen
pasts of air sdmple. The Department of Public Health in this

particular matter undertook 198 chromotropic acid tests of the

formaldehyde level in houses in which urea formaldehyde based fcan

(hereinafter called UFFI) had been installed. The tests were not
tandomly representative, but were selected from those consumers .
who had sities tints made complaints to some state agency. There
were no tests of formaldehyde level made ty the Department in any
non UFFI homes. Additionally, there were no tests made by the
Department to determine any representative or random outdoor
ambient levels. Therefore, no comparison tetween UFFI and

non Urrl houses has ever been hed, ner is such a comparison
presently possible fram the Department's data. Lastly,
saundeendesia desi sests measwre the concentration of formaldehyde

—-

ang co Not in any way ettempt to disiinguish w iueutity source,
In 21 percent of the 198 UFFI homes the Department tested, no
level of formaldehyde was found. Additionally, in 156 out of
198 UrFI homes, or seventy-eight percent of the ‘entize test

sample, the level of formaldehyde was found to be .09 om iess pez

|

million parts of ambient air. Lastly, the Department's testing

' pevealed all 198 houses to have a level less than .5 parts per

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million parts of air.
Although the Department never undertook such @ study, there

has" been research without the Commonwealth. A University of
Iowa Group measured 31 randomly chesen non UFFI homes with the
chromotropic seis test and found an average level of .06
formaldehyde per million parts as against an average level of .05
formaldehyde per million parts for 116 randomly chosen UFFL
houses, At the present state of the technical knowledge and
expertise, there has been no showing that the ambient level of
formaldehyde concentration in houses in which UFFI has been
properly installed is skint Pouathe more appreciable or differer: :

than the level of formaldehyde in stwitar houses without UFFI.

vit

FINDINGS REGARDING HEALTH EFFECTS OF
EXPOSURE TO FORMALDEHYDE AND
PRESENT SCIENTIFIC INABILITY TO DRAW
TOXICITY STANDARDS WITH REASONABLE

_ SCIENTIFIC CERTITUDE

Relatively low airborne concentrations of formaldehyde will
produce adverse health effects upon persons so exposed. As
exposure levels increase. from zero man's tolerance decreases
and at some point of concentration level, «he border between
tolezance and toxicity is crossed. There is a wide disparity
Of opinion as to the level of exposure below which adverse |
‘ Realth effects will not be experienced. In all 198 homes (or
100%) with OFFI which were tested for ambient formaldehyde by
it was “available”, It is also important to emphasize ‘hat

=3l-

- he considered the hearings es an appropriate way to "discover"
these widespread poor effects. Therefore, the evidence supports
and I draw the inference that on February 22, 1979, prior to

the scheduling of any public hearing, the case against UFFI -had

been prejudged.

- 32 -

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FINDINGS REGARDING THE PUBLIC HEARINGS OF

MARCE 29 AND MARCH 30, 1979

On March 7, 1979, the Commissioner of the Department of
Public Health gave notice of the public hearing “on proposed

regulations concerning the banning of urea formaldehyde based,

‘ Scamed-in-place insulation from commerce within Massachusetts ...

The purpose of the hearing was", . . to receive written and
oral testimony ..." on these proposed regulations. This
public hearing was scheduled to de held on Thursday, March 29,
1979, at 10:00 A.M. A second day wes conditionally further
provided, eS ee ee and, 4f necessary, Friday, March 30,
1979." Written testimonial submissions could te made pricr to
the nearing ty delivery to e named employee of the department,
ané aiso, copies of the proposed regulations would likewise te
fonished by that sextdeutar empleyvee., However, it was

expressly stated "all written testimony must be submitted no

| latex then March 30, 1979, unless such time for submission was

/ expressly extended."

1a rrr Tew dane e “ Pe mmet awe 4‘ aman
BOW antsy aowe wweeg V8 8 6 eer Ze Ce -——borne formaldehyde. Moreover, 211 of the evidence collected

in the administrative hearing showed there is a general

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population tolerance threshold that exists.
The Commissioner not only lacked any factuat basis for his

conclusion that "in all likelihood sutstantiel numbers" are

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affected, he admitted the same many times in his summary. See,
for example: "We lack epidemiologic and clinical studies of
the long serm effects of formaldehyde vapor on humans .. . The
. mumper or stuczes is rew.” (see p.45 of Tad 4, Exbivdii i.)

"In toto, this evidence does not permit us to determine with

amy degree of accuracy the contribution made by non-UFFI products

to the formaldehyde problems." (See p.72 of Tato 4, Exhibit 1.)

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+ would not allow me to determine the frequency of the occurrence

"Knowledge cf the precise mumber of persons affected by UFFI

problems caused by UFFI unless I also knew the number of
tallations of UFFI in Massechusetts ... I have no reliable
estimate of that number. . ." (See p.62, Tab 4, Exhibit 1.) _
in sum, there was no evidence upon which the Commissioner
would have been warranted in finding,1) the ambient levels of
formaldehyde in houses with UFFI to be materially different
from houses without UFFI, 2) what-percentage of incident rate
of complaints is attributable to faulty installation, 3) what
was the incident rate in UFFI homes; moreover, what was the
incident rate in UFFI homes as compared So non-UFrril hemes,
insofar as the same omar Question. of fact, I find the Commissionez
had no basis for concluding that a significant number of
individuals may incur significant harm as 2 proximate result of
exposure to Urrl.

Tne Commissioner defended his lack of knowledge ty blaming
ch ‘UFFI ‘industry. The Commissioner stated, "The Commonwealth
has attempted to secure complete lists of Massachusetts
installations of UFFI without success . .. The absence of a
Teasonably complete list has thwarted the Commanetetite te attempts

to perform an epidemiologic study."

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I find as a fact that this specific representation within
; the summary regarding thwarting any attempt to perform
i epidemiologic studies is not credible, and I give this
justification neither reliance nor weight, The administrative

record assembled would easily have permitted the gathering of a

sufficient UFFI sroup (for example, the 300 UFFI homes suggested
| by Dr. Landrigan and referred to by the Commissioner in his

| summary), As factually found by this Court earlier; the

Commissionex could have causeian epidemiological stucy to have

been done with the information he possessed, tut he elected not
to compare the elleged health effects experienced oy UFFI
resicgents with the incident rates for the general public. The
Commissioner testified, end I find, that the stucy publicly

announced in 1978 to do just such a comparison was not done

because it wes never funded by 2 sufficient appropriation or
grant. More particularly, the administrative record of this heaziz
contains no request by the egency co any int@rested party to

oresent such specific data for consideration either 2t che

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public nearing, during it, om thereafter, during the period
of time that the record was left open; or at any time thereafter
until the regulations were promulgated in November. (The

general public demand made by the joint agencies of Consumer

Affairs and Public Health in November 17, 1978 for, among many
other items, a complete customer list, was made in connection
with a suggested voluntary industry wide tan that was then being
urged. I assume it was this demand the then Commissioner referred
to in his summary, Given the possibility of legal action under
Chapter 93A, and there were no then contemplated hearings under
Chapter S43 and that the list was to be furnished to Consumer
Affairs as was all the other information demanded generally,

subaitved have been examined.

_ #ithout knowlecge 2s to quantifying the contribution of UFFI

XII

FINDINGS CONCERNING THE SCOPE AND EXTENT
OF THE ADMINISTRATIVE RECORD
RE DECEMBER 1 AND AUGUST 1980 HEARINGS
A judicial review of the administrative data collected by
way of the statements given at the public hearingsand matters
submitted in connection therein cannot be accomplished, since
the administrative recerd is not complete. The public

proceedings were not preserved nor transcribed or recorded, and

therefore are not retrievable. However, the written materials

In promulgating the repurchase regulations, the
Commissioner continued to be without any kmowledge of the
numer of UFFI homes within the Commonwealth, and ignorant of
frequency of or incident rate with which the occupants of Urrl
hemes experienced symptoms. Once again, there was no information
furnished which would permit, end no attempt made to make
comparisons of incident rates between UFFI end non UFFI residents.
Yo epidemiologic study was done. Indeed, formalidehyce
concentrations within UFFI nomes were still not compared with
ferraldehyde levels in the outside ambient air. The
aéméinistrative record reveals no additional information was
susplied regurding potential emission sources, Therefore, in

oremulgeting the repurchese regulation, the Commissioner was

_ emicted formaldehyde to the total emission level within any

OFFI home.

Since she Commissioner remained unable to draw certain
necessary conclusions which would be grounded or warranted from
the administrative data collected (as, for example, 1) the
extent of UFFI emission, 2) as to the contribution of other
urea formaldehyde resin products commonly found in 211 residents
and 3) the mumber of persons affected, to name —_ three) the
approach taken in promulgating these repurchase regulations
remained the same 2s utilized in the ban regulations; to wit,
the burden was upon industry to prove formaldehyde safe up to
twenty-four hows a day over an individual lifetime. This wes
2 burden which the Commissioner hed already found industry cculc
not meet.

‘It 4s important to point out at this point, in promulgating
mis regulations (ban and repurchase) the Commissioner zequized
industry to rebut his inference thet the health symptons
allegedly suffered by nineteen persons were caused by exposwre
to UFFI emitted formaldehyde. The complaints upon which ‘he
Commissioner relied were only those in which there was either 2
statement made at the public hearing or submitted 2s a writting
and mace a part of the administrative record. Of these

nineteen, it is obvious that some of these lived in homes in

which the UFFI had not been correctly installed. Two of the

cszplaints involved Sorden's product tasutsorer. and one of

thes complaints clearly was an improper installation. None

cf these complaints involved C. P. Chemical's product Tripolymer.
Attention is now called to the Commissioner's “Comments Con-

cerning Repurchase of Urea-Formaldehyde Foam Insulation” at page

+ thereof under paragraph entitled "hb". This statement appears:

“The long term effects of formaldehyde exposure remain unknown

anc were not relied upon ow the Commissioner in banning UFFI."

This statement is of considerable importance and deserves closer

examination.

"As a prerequisite to such examination, three factual findings
2re cade at this point. (1) I find as a fact from the evidence
sreduced at trial before me that the effects of exposure to
formeldenyde at levels of 0.5 parts per miliion or less are
used in making any diagnesis. The purpose of this

authorization is somewhat unclear. This is so because the

industry member is neither permitted to examine the occupant
mor question the homeowner. The industry member cannot obtain
a complete set of medical records regarding the occupant from
any physicians recently visited. Resuits of past or present
mecical tests undertaken by the occupant and that patient's
past medical and family history are berred by these regulations
and withheld fram the industry member as beyond the scope of
the review afforded, :

Likewise, the industry member is prohibited access to the

building to test the formaldehyde level within the home, to

eo ee oe eee

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ee ee ee ee ee ee

ee ee ee a ae

+18 re ee te eee ee

oe ee eee ene me te « - * «

indings regarding installation of UFFI and the multiple factors
which must te considered, and there is no need toa repeat chen
here. While it must be conceded that there are many products
in this modern technological world whose creation, manufacture,
or even maintenance involve such ‘aieiie and diverse skills

coth cerebral and acquired as to be teyond the easy understending

4 atl anmm

= -~7
—— weecawwen 3

Of sliues eu cUumimisiwatus vl au Gacincy OF & jucics
the urea formaldehyde foaming of a residential structure is not

one of them. Therefore, a finding thet this process is so

difficult as to be a "possibly prohibitively complex" procedure

eee Ce ee me we

— a er: ct, a it til ae 8 te

. Chemical Company, at its own expense,

-69-

. Will take the necessary steps to reduce the level of formaldehyce

, within the living space to 0.1 pom, plus known anbient level,

| Giseases, lung diseases and cardiovascular @iseases, should not

- 2O@ +ee 6 a ae @cocsees

A EE ea + a

SF eS oe ow

or if unsuccessful, remove the insulation from the home;
(h) require that the written contract contain a warning that
persons who are generally hypersensitive, sensitive to

formaldehyde, generally allergic, and those with respiratory

purchase Tripolymer insulation unless advised by their physician
to the contrary; (1) require in the written contract a statement
thet families with children under six months of age, women
pregnant at the time of installation and extreme elderly

comsult their physician prior to executing the camtract;

(J) require a statement in the written contract that if 2 pungent

oder persists more than fourteen days after tallation, the
customer should immediately call C. BP. Chemical Company, and
further require that C. P, Chemical Company have available a
qualified individual to respond to such celis; (kK) require the

installer of Tripolymer to assure, prior to installation, that

saS pIrsspostivs Noes ecssesses scequete ventiietim.,
Bor¢en, the other manufacturer actively participating in
this litigation, and the Formaldehyde Institute, urge that

licensure of installers and the promulgation of regulations

—- ~~

. which would edequately protect the public interest.

' estatlishing installation standards are feasible alternatives

‘ Department of Housing and Urban Development (HUD) and the
Cecadien seguietivu) Vecause thes

. which regulations are intended to control vapor emission o> how

- @laims with scientific tests cr other evidence... Opponents

Once again in rejecting toth and either of two alternatives,
licensure of installers, and creation of installation regulations;
cne Commissioner reasoned in two ways.

First he again placed the burden upon industry. "Opponents
have claimed that proper installation will eliminate formaldehyde

problems in UFFI homes. Opponents have not substantiated these

have not demonstrated that UFFI can be installed properly .. .
Tne evidence suggests that improper installation may contribute
- « « DUS does not support a finding that licensure of installers
co svegulation of installations procedures will eliminate the ;
problems experienced,"

Secondly, he relied upon the absence of knowledge. He
rejected the three governmental Seaubicsitah submitted within she

administrative record (the Department of Energy (DOE),

" ne ake ee et O41 Te
~~

Fe me
wwe 44 wee HYP eee eww wmy

she standard adopted will result in vapor control." Moreover,

,

ne found that "This lack of information is particularly

—— ee eee me ee

-_—- -

ne ee res

SS SE! + ES HS + oF er ++ ae Semmes
Fe Se ee ee ee

. comeluded as follows:

troubling.” With regard to industry submissions, he likewise
commented, "Nor do I have evidence showing precisely what
installation procedures will control vaper problems or whether
these procedures have the capacity to eliminate vapor emissions,"
The Commissioner elected in this instance, aiso, not to
open the hearings to secure additional evidence, but to proceed
without that knowledge, He simply utilized both reasonings,
1) the burden is on industry, and 2) nis lack of kmowledge, and

"I therefore cannot conclude that improper installation
necessarily eccounts for the fermaldehyde problems experienced
in UFFI-insulated homes."

in light of the language in his explicit findings, this
Court now finds, insofar as it is a question of fact, shat the
Commissioner concluded that the administrative data wes
inadequate to support a finding either way as ‘to whether or not
proper tallation criterion would eliminate or cure all
experienced vapor protlems. I also have made certain findings
iu Fett V euuve scopesdiug Chic suivebiiiiy vf diveudings aut
regulating installation from the trial evidence (2s distinguished
from the administrative record) and there is no need to repeat

-72-

; Shose findings here. it is enough to point out that the

ww oes . oe
et He es +

mm

‘ee «© . —- — eee .
re erro eee ee ee 6 eee ee eee: eee

Commissioner declined to consider regulation as an alternative

to banning because of a lack of knowledge.

_—-—-- =
ste

XV
FINDINGS REGARDING OTHER PLAINTIFFS

Anderson Insulation Company has an usual place of business
in Abington, Massachusetts, It is a family owned business whose
business is as 2 supplier and installer of ell types of
imsulating materials for a vast variety of structures. Its mjor
market is the metropolitan area of Boston, but it also has had

business in the New England States and in New York. It begen

using Urri in November of 1976, and has fcamed about 300 structure

including churches, YMCA facilities, daycare centers, college
Gormitories, state tuildings, scahiaieell and commercial
structures, manufacturing plants, and the like. It has instalied
UFFI in @ppreximately 265 residences. It ceased use of UFFI et
the time of the tanning.

The Massachusetts Installers Contractors Association is 2
voluntary unincorporeted organization of installers of insulating
einais There were between 100 and 150 individual
Massachusetts installers who used. UFFI to insulate resicences
within this Commonwealth.

Berkshire Gas Company ("Berkshire") began promoting UFFI
in 1975 for residential customers in the western part of
Massachusetts, From 1975 until March 1979, approximately 518

oe

customers of Berkshire had their homes insulated with UrFi.

Initially, Berkshire would refer customers to 8 specific private |
i individual installer, not affiliated with Berkshire, end
approximately i22 homes were installed under such arrangements,

Berkshire received a fee for each of these referrals from the

———

private insulation contractc,
© some point in late 1976 or early 1977, Berkshire
Terminated that errangement with the installer. Thereafter,

. Berkshire would kegotiate and enter into a contract with the

SF EE Ss Se eS Came = . mee.

individual customer for the installation of UFFI and bill the

| customer teased upon the negotiated orice. Berkshire errenged to

| have a shire party install the UFFI in the home. in turn,

Serkshire paid the installer a portion of its contrect price,

i! maintaining the talence of the contract. Approximately 150 homes
: were insulated under these arrangements witil approximately

| June, i977.

i In approximately June, 1977, Berkshire terminated this

arrangement with the private insulation contractor, in part,

~- -—-—- «az awe Tadamtam ww nee ee
~Soueeusw we

= ~—-ae ~

L tegen to purchese quantities of UFFI ingredients from Celsius
Resources, Inc., and maintained a supply of UFFI ingredients at

its warehouse. From June, 1977, Berkshire continued to promote

or oer
+ eee. «

UFFI among its residential customers and others and negotiated
and entered into contracts with residential customers, and billed
and received payment from residential customers for the
installation of Urri. At that time, Berkshire arranged to have |
@ single installer, approved by Celsius, insulate each home
for which a contract was made between Berkshire and e customer,
The approved Celsius installer would utilize the supply of UFFI
which Berkshire maintained in its warehouse to complete the
Berkshire contracts with customers, Berkshire paid the instalier
for each job completed and maintained for its own use the
difference between the customer contract price and what it paid
thet installer, Approximately 160 homes were insulated with
UFFI under the arrangement between Berkshire and the approved
Celsius installer,

After March, 1979, Berkshire did not contract for the

installation of UFFI.

RULINGS OF LAW

below its.conclusions thereon.

: =. ‘=e.
ee es

@-Ao-

CHAPTER S4B REQUIRES AN
ADJUDICATORY HEARING

Pursuant to the provisions of Chapter $45, the hazardous
substance labeling law, the Commissioner of Public Health
promulgates the regulations at issue herein. His power to
regulate is found within Section 2 of the Act. A banned
hazardous substance is defined in Section 1. In the event an
exticle is banned, the statute clearly provides that the
manufacturer or distributor ", . . shall repurchase it from the
person to whom he sold it... and reimburse such person for
any reasonable and necessary expenses ine:rred in returning it
to the manufacturer.” Such repurchase, the statute declares,
shall te eccomplished ", . . in accordance with regulations
of the Commissioner." See General Laws, Chapter 943, Section 8.
The hazardous sutctance labeling law grants to the Commissioner
power to make factual findings, both as to the existence of
any hazard thet a specific product may pose, and, if factually
found to possess hazardous characteristics, then to determine
the particular degree of hazard that that substance possesses.
Further, this legislative scheme mandates that. in the event

sne Commissioner concludes a product to be a hazardous substance,

then he shell consider whether the labeling and packeging of

© + 82 semrcese om uss om
Oe ee: ee ee Sere

the hazardous substance ere in a form which suitatly addresses
che re@sonable requirements of public health and safety; c=
whether given the scope of the risk as perceived by him, that
the preduct is "misbranded", Misbranded hezardous substances
are by this statute effectively >semoved from the stream of
commerce by Section 3, and a violation of these provisions
ase made criminal by Section 4. If, however, the Commissioner

finds that certain additicnal label requirements ere necessary

' for the protection of public health, then he may ty regulation

"establish such reasonable variations . .." However, if the
Commissioner finds as a fact that an article cannot be
adequately lateled so as to protect public health, om.that the
azticle presents an imminent danger to public health, he may
Geclare that article to ce a tanned hazardous substance and
recuize its removal from commerce. To accomplish the statutory
purpose, the legislature has granted to the Commissioner the
power to declare "ty reasonable rules and regulations ... 4a
hazardous substance ... any... . which he ?inds meets the

ius =o & Th aw tet ZaFtimad amt wboutia 231% s4@ ear fant
wae as - _- -- «- -- *-“

** = mee _—_ =
& SY et Se Gssw « . . we veer Ne mt we oe 2

Section 1. Other than the above adjective "reasonable" this
grant of rule and regulation authority is not otherwise defined

in those first paragraphs of Section 2. However, after reciting

dosed ——

che statutory schemes in those paragraphs alphabetically
subdivided "a" through "6", the last paragraph appears to focus
on the parameters of this grant of rule making pewer, "The
Commissioner shall cause the regulations promulgated under this
chapter to conform, insofar as practicable, with the regulations
established pursuant to the federal hazardous substances act,"
This sentence in Chapter S4B, Section 2, does not set forth a

guide for statutory interpretation; rather, that phrase is

| Gescriptive of the grant of power given therein, and is directed

So the Commissioner. The legislature has mandated that in
making his "reasonatle" regulations, the Commissioner "shall
cause" his regulations "to conform". Conform is a verb which
simply denotes any undertaking to tring two objects into
harmony; or, more literally, to shape or form one object in the
imase, outline or contour of a second object. The vers conform
is directed to the promulgation by the Commissioner, and he is
to shape his promulgation to conform to thet ‘sinahaine of
sromulgation “established pursuant to the Federal Act."

This statute charges the Commissioner to conform his regulations
"tnsofar as practicable” with regulations estatlishec pursuant
to the Federal Act, The word "practicable" connotes the

a... a ——_ ——-

© +@ee
——— — : te te i aay sy

a ore see
Se eee

possidility of performance and hes es its outer limits of
performance, the lack of feasibility. In sum, therefore, the
legislative requirement could be restated: The Commissioner
must ebtes his regulations to conform to federal standards, in
ali cases in which it may be feasible so to do.

AS this point, it would appear prudent te look at the
Bederal Hazardous Site teuie Act (15 USCA $.1261). The

Massachusetts Act tracks this federal legislation in its

from 2 comparison of 15 USCA s.1252 with Chapter $43, s.2._
Procedurally, the federal model provides specifically shat the
issuance of regulations shall be undertaken pursuant to the
Administrative Procedures found in 21 USCA s.371 (the Food, Drug
and Cosmetic Act) and outlines the judicial remedies for review.
The Massachusetts statute gives the regulation power to the
Commissioner of Public Health (whose responsibilities include
Food and Drugs) direct him to conform to federal regulations,

anc is silent on judicial review.

either by a "proposal" made by the Secretary (car interested
party upon 2 showing of reasonable grounds). The Secretary

i substantive definitions and purposes, ali as more fully appears |

>

9 be heard orally and in writing, After a thirty-dey ‘objection

eOee ce ee
_— “1— eo owmseee sees

ee . er ne |
—— 0g a ee tae Oo ee eet meee 8

, WAAsRh the Federal Act provides is of some interest, since not

fact™ on which the ordez is grounded. (The judicial review

puslishes the proposal and gives al. interested an opportunity

pesiod, the Secretary may then effectively act. However, if with:
thisty days any person adversely affected ty such an order may
object, specifying with particularity and request a public
Rearing, upon such objection, the regulations are stayed. In
that event, the Secretary shall give due notice and hold a
hearing to receive ethene relevant and material on the issues
raised by the objections. Any interested person may be heard,
ez

after, the Secretary shall act thereupon by public order,

Tne arcer must be based "only on substantial evidence of recard

a2 such a hearing” and he "shall set forth detailed findings of

only may she Court affirm or set aside in whole or in part,
ssxperarily cr permanently, the regulation in question; but a

citioner may apply to Court for leave to adduce additional

ei
iL}
t

eviécence upon a showing that it is material and there were

seeseratle qoowmds for fadiwe to essiier sroiuee, and the

Couct may order the same; the Secretary having power upon such

sresentment to meke findings and/or modifications. )

LZ

—— at ac a: a, te. ae

——————

There is atsolutely no question thet under she Federal
Hazasdous Substance Act,nhere a regulation is proposed which
would tan a product and require tepurchase, therety creating
retroactive liability and significant manufacturing or merketing
ampact, he act would “require a notice of hearing, a right of the cbjecting
party to cross-examine witnesses presented by the. . . (Consumer
Product Safety). . . Commission, and to present evidence in
opposition thereto, and other evidence which-may be relevant or

material to the issues ..." Spring Mills, Inc. v. Consumer

Product Safety Commission, 434 F. Supp. 416, 431 (1977). In 1977,
the Conmission banned 211 self pressurized products containing
vinyl chloride by following the administrative procedure in
proposing 2 regulation banning the same, During the thirty-day
period for objections, nine comments, including three critical
ones, were received, A request for public hearing was denied
because the objections were "void of reference to factual
information", The case is particularly interesting, since in
support of its ban, the Commission head stated "no safe level
of human eaposure to vinyl chicride has teen estebiiches", end

concluded "the potential hezard ... is sufficiently serious

and immediate to warrant repurchase." The protester sought

Sucicial review, and the regulating agency agreed that the
cojections were in effect a nullity and did not aacess (tate a
hearing because the objections were legally insufficient to-change
the result. The Ninth Circuit reviewed the legislative history
az length and concluded that where such 2a broad grant of power
had been given both the original drafters, and subsequently

those who had amended the sane from time to time, Congress clearl
intended that the rigid statutory requirement of a formal

nearing should continue in every case where a prcoposed regulation
w2$ controversial and opposed by persong who were adversely
a*fecced Sy the agency's action. Pactra Industries, Inc. vy.

scnsume> Product Safety Commission, §55 z°° 677 (1977). The

racionaie of Pactra is applicable here. The Court said that
she recuirement
"serves to impose a discipline on the
agency's decision-making process, forcing
it to present ordered proof to support its
position. These procedures permit affected
parties to express in a direct and participa-
sory manner their opposition and criticism of
governmental action before it becomes final.
The public, and the regulated industries,
as well as the agency, develop a better

understanding of the problem at hand by

following these procedures, and the resulting

regulation may be a more refined and precise
statement of agency policy. The procedural
restrictions imposed on the agency by

section 371(e) are admittediy severe, but
they are stated with particularity in the
rule-making statute, sad we can find no reason
to. dispense with these procedures in this
case. If the Commission believes that a
substance should not be used where it has
been shown to be potentially carcinogenic
under intensive exposure conditions, its
determination deserves thorough public
examination. To implement that determination

the agency must therefore follow the procedures

Congress has prescribed." Pactra Industries

v. CPSC, suora, at 685.

Tn 1972, Massachusetts completely rewrote the Hazardous

. Substance Labelling Act by striking out sections one through nine
of Chapter $48 and substituting the present version. It is
inconceivable that the legislature, in mandating that the
Commissioner shall make specific findings of fact regarding the
inherent character(sties of a particular product or other specific

@tvicie Offered in Commerce wes unaware of the fact that the

-84-

federal drafters cf the model that they were tracking
considered public evidentiary hearings on rule proposals which
adversely affected interested persons to be an essential
procedure to check the broad grant of administrative power.

It fs obvious to make such findings about such an article
which requires the Commissioner to hold hearings concerned
with the particular product. Certainly just such hearings were
within the contemplation of the legislature.

21 USCA s. 371 from its initial enactment in 1938
through 1954 and 1956 amendments (making the process less

cumbersome) to its present form, mandates a formal

ro

ae

-_—_ +. -~« _— . ee
ee SS Ree nee ee ee

; evicentiery hearing whenever 2 proposal is opposed ty te
adversely affected, (See 1968 Duke L.J. 1) The case of
i Pha maceutical Manufacturers ‘Association v. Gardner, 381 fF, 2d 271,
was decided five years tefore the redrafting of the Massachusetts
statute, |

in the case at tar, the representatives of industry
registered theirobjections to the March 7, 1979 eecbesal, Since
Shey were interested vadben who would have teen adversely affectec
Shey were entitled to an evidentiary hearing, including the right
So cross-examine, and the right to present relevant and material
evidence regarding the issues raised by the proposed regulation.
Trey were entitled to such a hearing pursuant to the provisions
of Chapter S&B, Section 2. |

“The Commissioner shall cause the regulations orcaulgeted

under this chapter to conform insofar as practicatle

with the regulations established pursuant to the
Federal Eazardous Substances Act."

Any claim in this case that the Commissioner may be
excused for his failure to conform predicated upon the phrase
"4nsofar as practicable" is doomed to failure on the most

-/
a /

fundamental grounds, to wit, factually, Feasibility is

L/ Although not in connection with the language of Chapter ola,
Section 2, “insofar es practicable” » the Commonvealth, in

‘
. +
. . , . oS
‘
7 Ne
~~ x ? i

(footnote continued)

essentially a question of fact. Here the facts are that such a
hearing was clearly feasible. The Commissioner, the Executive
Office of Consumer Affairs, and the Attorney General all
considered the industry representatives an easily identifiable
group o* common interest and purpose. The Commissioner thought

it practicable to deal industry wide until March 7, 1979. So

did the Office of Consumer Affiars. Further, the Attorney

General had no difficulty in identifying interested persons

when contemplating his Chapter 93A action; and factually, there
was an immediate and uniform industry response to this anticipated
litigation and the commencement of negotiations and discussions.
Simply put, if it is feasible, and it was, to bring a court case
against a group of defendants, then that group has sufficient
common indicia to be identified for an adjudicative agency.
proceeding. After all a 948 hearing deals with the examination

of some particular product. NAUFIM was the industry's spokesman

and the product's advocate.

(Tootnote continued)

arguing that an adjudicatory hearing under the Administrative
Procedure Act is not required, observed as follows: “in

order to carry out his statutory duty under the statute,

the Commissioner had to consider the interests and concerns
of the plaintiffs, other manufacturers, distributors,’
installers, consumers and even casual visitors to homes,

* an ahvinusly larae numher which it would he
impracticable to include in an adjudicatory proceeding."

This argument is interesting because it presumes the Commissioner
has a policy making discretion to avoid making findings of
fact concerning the existence of hazardous characteristics
within the particular product being examined and to avoid
making the statutory findings as to the particular degree

of hazard possessed by that specific product.

-87- : 7" - 4 7 in? wae

CHAPTER 30 A REQUIRES All ADJUDICATORY HEARING

If this court be in error and ic is subsequently.
¢erersined chat the provisions of Chapcer 94 B, Sec. 2, ate
moc to be construed as this courc has done in Part A above,
nevertheless I find and rule chac che plainciffs were entitled
So an ageccy adjudicatory proceeding under Chapter 30 A,

Sec. 101), whereis an agency is mandated to conduct adjudicatory .
proceedings when "che legal rights, duties, or privileges of
specifically named persons are required by consticucional right
er Sy any provision of che Saseent Laws."

First, I fied chae Sis adjudicacory proceedings are
sasdated by a fair reading of Chapter 94 3B, Section 2, as applied
to the facts of chis case. The ban and repurchase regulation
act issue seek to impose huge financial Liabilicies ulcimacely
spon a small selecc group of sanufacturers of a target product.
The regulations are soc only prospective but are retroactive
anc ispose severe liabilicies for pase accivity which was, ac
the cise done, lawful and proper conduct. The Massachusetts
Tepurchase power copied in essential decail from the federal
statute, and che legislature enacted that Section 8 at the sane
cise as ict enacted Section 2. Ic is imporcance to distinguish a
Chapter 94 B proceeding from other types of agency hearings. A
Chapter 94 B hearing is a proceeding againse a ching, an object,
or other article of commerce. The issues to be resolved ac the
hearing all concern che qualicies and propensities of thac
pazrcicular res. The act sandates that specific findings. by che
Consissiocer be sade on the only relevant issue; to wit, the
Cegree of hazard, if any, the res presents, Therefore, the
tearing is soc lLegislacive in nacure dealing with any policy
question; racher the hearing's sole object is to factually
Cecersine the attributes of che specific res.

Therefore, ic is certainly a reasonable interpretation .:

of chat requiremenc "conform....insofar as practicable” in

Section 2 which. meant that when the Commissioner was proposing

bans and seeking to invoke the repurchase power of Section 8

that he should afford those interested persons adversely to be
affected by che imposition of retroactive liabilicies the

type. of hearing to which they would be entitled under the federal
act, and that this statutory phrase "conform...insofar as practicable’
therefore is a statutory requirement vhich is cognizable withia

the phrase "when required...by any provision of the General

Laws... " as Chose terms are found in Chapter 30 A. Sec. 1(1).
Therefore, an adjudicatory hearing is required.
2

Secondly, in any event, I find that Chapter 30 A, Sec. 1(1)

necessitaces an adjudicatory hearing upon the facts of the cases
at bar since these proceedings involve "... the legal righes,’
duties, ot privileges of spécifically nased persons...".
Obviously the proceedings questioned herein involve legal rights
and ducies. The more difficulc question is whether che proceedings
were focused upon or directed to “specifically samed persons”.
The argument of the Commonwealth is that the proceedings were
of general applicacion throughout the industry. “Indeed the line
between adjudication and rule making is noe always easy to draw.
Sometimes it is necessary to examine the interess of the parcicular
parties, to look at the nature of the subject matter soughe
to be regulated, and to compare the proposed regulation with
the sctacute authorizing its promulgation so as to weigh the
relationship, if any, between the regulation and the underlying
basic statutory scheme.

‘ Te auppost iis Gouteutivu shed ed judicatosz Uddtings
were noc required, che Commissioner relies upon the six cases
discussed below. For the reasons stated, I find reliance upon

these cases is sisplaced. Cambridge Electric Light Co. v.
Department of Public Ucilicies, 363 Mass. 474, dealt with a

’
Bi 5° -

-8392 be observed by all sellers of all goods and did not adversely
alfecc asy significance interest of any particular group. Ia
Greeslea‘! che parties in thac case stipulated thac che regulaticas
was sot adjudicatory in nature. In any event the regulation

was prospective, of general fucure effecc to the permitted saxinua
tate structure to be used by lenders involved in the business of
lencing $3000 or less. There is such a long standing well grounded
sblic policy in this Commonwealth regarding small loan interesc
ates Legislatively articulated over the years by both criminal
azd civil statutes, the relationship between the regulation and

=:
2
>

the underlying statutory scheme seems basic.

-90-

Grocery Manufacturers cf Anerica v. Departsent of

Public Heaith,1979,AS 2291, is an interesting case but I ‘do noe
tegard it as supportive of the Commissiocer's position. Grocery
presented a challenge to the open date labeling requirement for
certain food products. It was mandated by a regulation promulgated
under the authority of Chapter 94. As that case is applicable to
this issue, Grocery seeus to suggest that one might not be encicled
to an adjwdicatory hearing in connection with a proposed regulation
focused upon requiring all within the food market place to affiz
certain labels to certain products siaply because one wight be

the subjece of a criminal prosecution. Such a possidility is

not such a significant interest when prosecution is “unlikely”

Csee P. 2308) withoue a prior administrative review and dosteites

which was provided for withia the regulation.

Cast Tron Seil Pipe v. Board of State Examiners and,
Gas Ficters, 1979 AS 2161, 396 NE2d 457, is the sost supportive
case for che Commissioner's contention that adjudicatory hearings
were soc required in che instant case. In that case the plaiaciff
was seeking to protect what ic considered a valuable property
sight, a patented clamp device ucilized ian connecting hubless
sewer or drain pipe installations. The defendant Board is the
regulatory Board generally charged undes Chapcer 142, Section 13,
with che saking of those regulations which shall constitute che
Massachusetts Plumbisg Code, and Chapter 142, Section 13, contains
no statutory requirement for a hearing. However, as a result of
some complaists about the reliabilicy of hubless systems, the
Board did hold a public hearing of a “Legislative” type. The
Board cecided to restrict the use of the hubless system Co
above-ground inscallacions and made that position known. However,
before taking dispositive action, the Board heid.a second hearing
buc denied Cast Iron's request that this later hearing be
adjudicatory in nature. The propriety of thac denial was usheld
by the Appeals Court. The regulation had a strong and an obvious

“ -91- * aw =~ , , apes

relationship with the underlying statutory scheme wherein the

Board should adope uniform reasonable standards based on generally
accepted standards of plumbing practice such as promote the public
health and safety. The Appeals Court seems to have given the

nature of the regulation itself controlling weight in determining
that adjudicacory hearings were not required. The standards set

dy the regulation were of materials by generic type withous
¢ifferentiation among the products of different manufacturers,

and Cast Iron, who had the burden of proof on the issue of the
tegulacion's neutrality, did not introduce the underlying standard
to which che questioned regulation had reference. The regulation
itself was noc only strongly related to the basic statutory schese,
-t was eatirely prospective not to become effective until expected
"existing inventories" are depleted. With respect to the question
cf whac "significance interesc” Cast Iron asserted, the case presexnts
an obscure picture. The exact nature of the patent was not disclose
The plaiacif! was not the only cast iron clamp maker. The effece

on other manufacturers was not presented. The specific effece

upon Cast Iron was not demonstrated.

The consolidated case at bar does not involve an obviously
large and indeterminate grouping of interest as did Cass Iron and
therefore should not be decided, as Cast Iron was, upon the |
"fuactional suitability” concepce. (see Cast iron supra, at p. 2162)
The issues addressed by the administrative hearings were Cwo:

1) Does a particular product have such dangerous characteristics

2s to be such a "hazardous substance” 45..that cerm is used in Section 1

mlianaani Bin
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af Caanrer 84 B thee she see eusks ce $s
hazardous substance", As such the question focuses directly upon
the asacure and characteristics of the product and its canufacturing
formulas, the standards, if any, utilized in its sanufacture,
storage, handling and shipping, che standards and customs of its

¢discribucion, ics shelf life, che installation practices and

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procedures, licensing feasibilicy, its labeling and warning
suicabilicies. Therefore, although broad in scope, the scrutiay
is nazrow ian its application, being limiced to a particular

icen and the inquiry to determine and find the facts regarding
its degree of hazard, if any, that the article possesses.

2) Should a specifically samed group (UFFI° home owners) be
granted a right to "repurchase" under Chapter 94 3B (constituting
a complece rezcval and sescoration) from the targeted group of

Y,

makers of that particular article

This target group obvfsusly was the wellspring for
the entire range of trade practices and uses and other activicies
which constituced the subjece of the inquiry; a source of
cousiderable significance as to the propriety of those practices,
and easily a primary source as to the feasibility cof those Cand
other proposed) practices. To argue that it would be seither

feasible nor practical to tap that source for the intended inquiry ©

would be Ludicrous; and of course the Commissioner does sot directly

so contend. The thrust of th Commissioner's argument is a sore
subtle boot-strapping. The Commissioner would cloak the Chapter
94 B hearing fact-finding function with an additional policy
making power predicated upon agency expertise and to be exercised
in a discretionary manner to implement the statuory scheme of
Crapter 94 B. Having so postured the Chapter 94 3 hearing, he
then argues that the indeterminate public has 4 right ecual

to the owners of the questioned res, to be heard on whether this

policy making power should be exercised. Therefore, an adjudicacory

hearing, given suck groupings, would not be feasible.

- =
ewer wees

‘aes

1/ Ice was this relacively szall group of sanufacturers that
were singled ost. “Installers and discribetors wiro tighe

a

However, I rule chat the "functional suicabilicy” cese
of Cast Iron is not applicable here. This ruling is made because
of the nature of a Chapter 94°B hearing and also in reliance upon
the findings of fact in part above, that the industry sembers
were an easily identifiable and non-diverse group. The res

iavolved had an obvious spokesman, NAUFIM.

Ie seems self-evident that the makers of the res have
a significant substantial interest that is to be adversely affected
dy the regulations in question. With respect to the repurchase
regulations, it is enough to point to the huge retroactive Liability
potential imposed therein and the extraordinarily long duration of
that imposition. With respect to the ban regulation, it is obvious
thas vhen a produce is denied access to the market place, the
owner-maker-direccly sustains all of the effects and consequences
cf that prohibicion. In sum, the tmpace of rbese regulations
spon Le sakers wee direcc, tocal and complete. The effect upon
the makers was the prinary effect of those regulations.

I conciude chat the Massachusetts rule is that where
1) a@ person has a business property right of significance or
possesses a substantial business right; and 2) where chat righe
ct interest is act issue or at stake or in jeopardy by a proposed
agency action that will both adversely and directly affect such
a significance property interest or subdstanctisl right; chen such
snterested parties have a right to 1) know and to meet unfavorable
evidence of facts regarding their businesses and their dbusiness
practices and activicies. This right includes sot only cross-
examination and rebuttal offerings but includes che right to
offer the agency, affirmative favorable evidence of facts regarding
the business and its related activities. This. is’so because,
usually, decermisations regarding business and business activities
ace essenctiaily adjudicatory in nature. I¢ has also- deen observed

that as persons having such a significant interest, thosé persons
knew more about the facts concerning themselves and their
activicies chan anyone else is likely to know.. In any event,

2 conclude that the plaintiffs have the type and kind of interest
which required an adjudicatory hearing in Milligan v. Board of

Registration in Pharmacy.348 Mass. 491, 496.

Ta sum, even if it be decided that Chapter 94 8B is
silent on the question, having examined the nature of the regulation
iavolved, the type of hearing mandated by the statutory scheme “i
underlying the Hazardous Substance Labeling Act, and applying
che same cto this case, I find an adjudicatory hearing under

Chapter 30 Al is required.
2

I find and cule that the principle of statutory
conscruction which favors an interpretation of a questioned
statute so as to give it validity avoiding serious constitutional
issues is applicable and therefore even if Chapter 94 3B is
deezed silence on the necessity for an adjudicatory hearing, it
is co be implied as mandated by Chapter 30 A.

c

IF THIS COURT ERRED IN RULING THAT
ADJUDICATORY HEARINGS ARE REQUESTED,

THEN THE DECLARATORY JUDGMENT ACT

PROVIDES FOR JUDICIAL REVIEW OF

THESE REGULATIONS NOT LIMITED TO

THE ADMINISTRATIVE RECORD, ANO THE

BURDEN OF PROOF TO ESTABLISH THAT

THE REGULATION AS FACTUALLY APPLIED

IO PLAINTIFFS IS ARBITRARY AND CAPRICIOUS.

ri.
First, both the ban and the re-purchase reguation
considered together and considered separately and independent of

ezch other constitute a deprivation of a property right accompanied

oy state action, and I so rule. Ordinarily, therefore, a hearing.

should precede such a deprivation. Fuentis v. Shevin, $07 U.S. 67, 88.

Hcwever, where the deprivation is only of property rights, if there
is opportunity .for ultimate judicial review, then at least in certain
instances this does not constitute a denial. of procedural due

process. Haverhill Manor, Inc. v. Comm. of Public Welfare,

3€8 Mass. 15, 28.

The Commissioner contends that the administrative hearing
given fs all that due process requires. Although I have ruled to
she contrary, even if I am in error, this is not disoositive of
what type of judicial review becomes available to these plaintiffs.
The Commissicner contends that the standard of review is narrow
2nd the plaintiffs must show that the regulation is arbitrary or
sepricious. The Commissioner argues that the regulation is to be
sustained uniess the plaintiffs can show the absence of any
sonceivable ground upon which the regulation may be upheld. However
sn2 Commissioner goes further and states that the "sole" question

sere which is dispositive of the olaintiffs' claims is whether
-96- Bs 5 « py: LSS ees

- Soi
ae |

specifically thac that parcicular group constituted "a significance
sumber in and of itself", when the Commissioner sade neither a
finding as to the number of complaints sor any findings as to the
complaine ratio to the number of installations, is an arbitrary
finding. Certainly.“a smajoricy of nineteen” is very significance
if the whole is nineteen, less significant if ninety, discernable
if nineteen hundred, siniscule if nineteen thousand. The aumber
of persons suffering adverse health symptoms by itself is only

a sumber; what gives the number its significance is its relation- .
ship to the extire group under study. To give a fraction a
determining significance independent and irrespective of the
quantity of the whole is not reasonable or rational. Perhaps the
Commissioner sensed the same when he thereafter found "In all.
Likelibood, substancial numbers of other persons were similarly
affected". However, that finding was noc footed in fact, but
rather was grounded upon an unsupportdd supposition. To proceed
to utilize the police power of the Commonwealth by ispoging a ban
wpon @ product based upon such supposition is arbitracsy and
capricious action.

6) That the ban is arbicrary and capricious since there
has been no showing that less restrictive alternatives, such as
Licensing installers or establishing installation standards, would
not property effectuate an adequate solution. The failure to
concuct a less burdensome remedy vas arbitrary.

7) That the repurchase regulations ace arbitrary and
capricious in segquircing an industry member co expend substantial
funds without ever affording it an opportunity to question the
claimant, cross-examine witnesses, contest causation, or otherWise
exercise minizsal procedural rights to which ic is entitled as
a sactter of due process of law. They are arbitrary and capricious
in the refusal to allow the industry member to determine whether.
the UFFI ac issue is its UFFI or even to allow an industry senber

-97-

"given che voluminous record ... sow filed with chis Court and
the detailed findings and conclusions...is there any basis to
find chat the regulations représent a reasonable exercise of

the Commissioner's discretionary authoricy...". That is as
inaccurate statement. For purposes of this part, we have assumed
that an adjudicatory proceeding was sot required. Therefore the
“voluminous record" is not a "cartified copy of the record of
the proceedicgs under review" as that phrase is used in Chapter
304, $.14; and that statute is not applicable co the judicial
teview in this case which is found in Chapter 30a, S. 7? The
agency record in this case is a huge gratuitous collection of
GBasvera writcen submissions and oral statements and urgings.
Indeed, ac least with respect to the re-purchase hearings ict

is not complete.

The plaintiffs actack che regulations under che clais
of substantive due process. They seek a declaration of their
rights pursuant to Chapter 231A. If the plaintiffs had so
constitutional or statutory right to an adjudicatory hearing,
certainly to insure a fair and meaningful judicial review, chen
Chapter 30A, $.7, which sakes available a declaratory judgment
procedure, is to be construed is a manner which persnits the
plainciffs fair and reasonable opportunity to present their claics.
In this-case the plainciffs have the burden to go forward at
trial and present their proofs. tic is incumbent upon the plaiaciféis
in order to prevail to demonstrate by a fair preponderance of all of
the evidence produced to a fact finder that these regulations, ot
either of them, as applied to che plaintiffs upon che totality of
the circumstances found are either unconsticucional or are irrational

ia, their operation.

- 98.

THE BAN AND REPURCHASE
ARE ARBITRARY AND CAPRICIOUS

I find that the plaintiffs have sustained their
Durden and have established by a fair preponderance of the
evidence that the imposition of both the ban and the re-
purchase regulations are without rational basis in fact.

Specifically I rule, 1) thae ic was arbitrary and
Capricious to classify exposure to formaldehyde as an irritant
ot as toxic at any level of concentration. Consequently the
Sisdisg chat formaldehyde is "hazardous" independent and
Szrespective of any given level of exposure vas, likewise,
wisthouc a rational basis in fact.

2) Thac, since the Commissioner was unable to fiad as
2 fact the amoust of formaidehyde UFFI contributes to the
isdoor environment and since sany other potential sources are
prese=c within the ordinary hose, the selection of UFFI insulatios
Sor separace and different treatment was capricious. As found
Sy the facets above, the swany industrial uses of formaldehyde are
because of ics characteristics as a chemical bonding agenc.

Urea Sormaldehyde resins are used in the production of plywood,
particle boards and ceiling materials. In any given. home, the
sudflooriang, the carpet, its bonding agent, the incterioz walls,
she ceilisg, the cabinetry are all urea formaldehyde resis
products. These products have the same propensities cegardiag

c £f-gasing and hydrolysis. Each, any, and all such products say
asd probably do contribute to the lewel of formaldehyde concentration
feund wicthia a home (with er without UFFI iasulacion). Sisce the
Censissiones did act know the contribution ef UFFI insulation to
the indoor atmosphere and could set even find whether the indoor
atsosphere of a UFFI home had a concentration level equal to or

. a
-$o- - !
2 ey at

in excess of a non-UFFI home, the banning of the UFFI insulation
was arbitrary.

3) That siice the Commissioner could have easily
undertaken « comparison study of the smbient levels of UFFI and
non-UFFI homes and could have undertaken an epidemiological
study and fixed an incident rate for symptoms allegedly caused
by UFFI, che promulgation of the regulations without such knowledge
was arbitrary and capricious. Even if this Court's ruling on che
necessity for such adjudicatory hearings is deemed to be im error,
certainl’ ‘or an agency to promulgate adssinistracive regulacions
rooted in ignorance, Leaving the importance issues of causal
connection and contribucion and incident rates unanswered and,
indeed, even unexplored, is to perform its agency function is as
irresponsible and totally arbitrary amanner.

4) That the Commissioner's finding that UFFI creates an
appreciable risk of harm to a significance sumber of persons vas
a findiag not based upon any rational basis. The evidence establishe
and I conclude chat ic is highly unlikely that any individual will
experience any “substantial personal injury or substantial illaess"
as that phrase is used in Chapter 943, Sec..1, the proximate cause
of which is an exposure to an unacceptable level of forzaldehyde
caused by a properly installed Tripolymer installation. Likewise,
since the evidesce warrants, I find for the Formaldehyde Tasticute -
and Sorden in thac there is no rational basis upon which one aay
conclude chat ic is likely thac significant numbers of persons vill
experience such a “substantial” injury or {itnene as the nrovimare
result of formaldehyde exposure ‘rom UFFI insulation when it is
properly iatalled.

S$) That the agency finding that UFFI either “caused or
significantly contribuced” to cercaia adverse health syuptous
experienced by che sajority of ainetees bensusers, ‘and more

to verify che existence of UFFI in the building at issue.

8) The tepurchase regulations are arbitrary and
capricious in requiring an industry member to repurchase UFFI -
as a resulc of the existence of certain health symptoms while
precluding the introduction of any evidence tending to show that
the symptoms in question are not caused by UFFI oz formaldehyde
while prohibdicing che introduction of evidence om causation
and not requiring any finding by che administrative ceviewer

that those symptoms aré\caused by UFFI.

9) The repurchase regulations are arbitrary aad
capricious in requiring an industry member to repurchase UFFI
as a resulc of an occupant’s having experienced one health
symptom on one occasion only since che installation of. UFFI aad
never having experienced thac symptom again, and in denying the
industry member any opportunity co be heard upon chat issue,

10) A finding for Borden and the Institute is required
because che repurchase regulations are arbitrary and capricious
in precluding che introduction of any evidence as to the formaldehyde
level in che indoor or oucdoor ambient air and isn failing co condicion
“tepurchase”™ on a showing that there is any formaldehyde inside
the home. In precluding the introduction of any evidence as tc
the presence of ather sources of formaldehyde. and particularly
by excluding the introduction of any evidence a» to the presence of
aay indoor air pollutants, the regulations are arbitrary and

capricious.

‘1t) =«The Rea regulations are arbicrary and capricious
in imposing an improper burden of proof upon the industry menber
because chey obligate ce referee to find that the statements of

the individual claimant are true unless the record “clearly and
convincingly demonstrates chat...(chose allegationg)...are untrue”,

ae a -101-

12) A finding for Borden and the Institute is required
because the repurchase regulations do not provide for any actual
asd meaningful adjudicatory rights before a “Certificate of Right

to Repurchase” is issued.

THERE ARE SEVERAL ISSUES OF LAW THAT HAVE NOT BEEN
PREVIOUSLY ADORESSED SUT WHICH SHOULD BRIEFLY BE DESCUSSED:

1.

Are the repurchase regulations repugnant to consticucional
due process? The answer is hedged. If the plainciffs have a right
to an adjudicatory hearing before the product is banned, the agency
has considered che issue of hazard, Many of the questions that
plaincifs might seek to raise in a repurchase hearing would have
previously been considered. The Hazardous Substance Labeling Act
tepurchase concept never conteuplaced a cumbersome, individual,
tepecicive, adversary proceeding. If one looks only act the repurchase
tTegulacions and from che view chat no prior adjudicatory hearing
is to be had, then che regulations are certaisly suspect. The
fundamental poinc is simply chac the plaintiffs cannot de denied
access to all forums. If, as was attempted herein, che plainsifis
arte not allowed co seaningfully contest the Commissioner's proposed
finding of hazardous, and then are silenced at the repurchase bearing |
on the theory chac the issue of hazard has been decided, due process
has been abused. However, in this case the plaintiffs have sow had
a judicial review (even if it is held they are noc entitled to a
prior adjudicatory hearing) is which they have had a full opportunity
to present proofs and confront the evidence offered against Chea.
Deferzal is not always denial and is somecizes permitted. Consequently,
the issue need noc be further examined.

s
, . u
Are the repurchase regulacions in conflict with Section &
of the Hazardous Substance Act? Once again, the facts as found -and
the rulings sade herein have diminished the importance of this issue.
However, it should be stated that the remedy of repurchase set forth
in the regulation dees sot exceed its statutory basis. Siaply put,

’

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-10> | : : rs ’

the legislacure entrusted che implemensacion of its policy to the
agency; acd this agency had the power to fashion a repurchase
scheme This courc's rulings are that although such a repurchase
plan would be authorized by law, in this case there should have
been a prior adjudicatory hearing; or, if deemed an administrative
tegulacion, that it lacks a rational basis.

However, the ruling should be carefully stated since, if
Spon appellate review, ic is determined chat neither a prior
adjuiicatory hearing, is necessary and that this administrative regulation does
have a rational basis, then'such a referee-type tribunal as created
hereunder would be extremely troublesome. This is not because
of Chapter 943. I rejece the contentions of the plainciff thac
Chapter 948 limits the purchaser to pursue solely his installer
oz Limits che amount of recovery to the purchase price. The
scheme vould be trcublesome for two reasons, the first being
the constitutional due process considerations nentioned immediacely
above. If this referee-cribunal created by these regulations
is to be construed as an adjudicatery body, it is importaat to
note the heavy burden of proof thac is upon those who would avoid
Liability, and chac ail issues of causation are barred. No hearings
aze co be held, no questions asked, so evidence taken. Second,
Chapcer 9438 does sot authorize the Commissioner to create such-
an adjudicacory tribusal. Ic is only if che referee review is
considered as a reasonable administrative appendage of stated :
policy implementation (che parties having hdd previously \opportunity i
to contest thac policy) that suéb a repurchase scheme is torbe .

considered as properly authorized, ) y, ’ 3

s ; q *

3.

The pre-emption claims raised have no application to
any of che cases at bar. Suffice co state there is so basis for
the contention that federal law has pre-enpted the field plowed
by Chapter 943. Certainly there is se irreconcilable: conflict,
and the Comncnvesith's assettion ef power ts plainly withia the
scope of its police power. There is nothing withia the Commerce
Clause which aids the plaintiffs. The issue is se clear ne

extended discussion would be helpful.

4.

The Anderson foam case has been brought as a class action
on behalf of all urea-formaldehyde foam insulacion contractors
or installers. There are approximately one hundred fifty
contractors who have made retail sales of UFFI to be used by
residents and who are adversely affected by the repurchase
regulation. However, certificacion of the class has never been
actively sought, and in light of the findings of fact and rulings
made herein, it does not seen prudent co act upos the question

of certificacion at this juncture.
S$.
% The motion for Summary Judgement on behalf of the r

Commissioner previously taken under advisement is sow to be ecdorsed
"Denied for reasons set forth in a memorandum filed this date”,

a

Conclusion

Chbviocusly individual homeowners who seek compensatory

damases from manufacturers, distributors and installers are
uneffected by this case. Those private zemedies for breach cf an
implied warranty of fitness or merchantability and or for negli- ;
gent manufacture or installation remain fully available to those who
have been agcrieved by either such necligence or breach of
warranty.

_ The scope of the present ruling is limited solely to the
issue presented and should net be misconstrued as creating anv
obstacle to any homeowner seeking relief from either a negligent
installation or from unfit insulation oroduct.

Simply put this court rules that before the Commissioner
can ban all future use of UFFI’ insulation, he must hold an
adjudicatory’hearing. (And in the alternative, if the legislative
type hearing was sufficient, then there does not exist in the ,
evidence presented at trial a sufficient hasis which would
warrant the conclusions which the Commissioner reached). Nothing

contained herein prevents the Commissioner from. undertaking

such an adjudicatory hearing.

Order for Judcment !
The prevailing parties are to prepare a suggested form .
of judgment. All parties shall be heard on that issue on Friday,
January 29, 1992 11:30 A.M. Suffolk Motion Session.

Justice o the Suserior Court

Entered: : oy PPP OY Wek eae J, an
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SUMMARY OF THE EVIDENCE
AND FINDINGS AND CONCLUSIONS
CONCERNING FORMALDEHYDE
AND UFFI

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DB oat Tas x” pia : A Tt ae de ot wa peed

Iatroduct ion . . . . . . . * . * . . . . . . . . * . >.

za. Chemical Compesition of UFFI..

Izz. Description of Health Protless te amigo cy UFFI
Consumers . . * . * . . . . * . . . . * . . . . .

Scientific Tests Reflecting Formaldehyde Release from UFTI.

w

» Laboratory Tests.
2. Asbiest Air Tests Showing Forzaldehyde Leveis in Ecses
Insulated with UFT=z.
Cc. Coznelusions Concerning Formaldehyde Emissions frc= UFFi.

Y. Health Effects of-Forsaldehyde .... 525s ce cevrevee 8B

. A. Asisal Studies.
3. Workplace Studies and Occupational Standards.
c. Clisical and Epidemicicgical Studies.

Dd. Specific Health Effects cn Children.

ae er
:

wii- Ease

- Expert Cpinicns Concerning the crritating, Sensitizing ané Toxic
Propercies of Formaldehyde.

“Formaldehyde as an Irritant.
Formaldehyde as a “Strong Sensitizer.”
Toxicity of Formaldenyde.

wr

Exper= Opinions and Regulator; Standerds Concerning Safe Levels
of Forzaldehyde Vapors in Zones. .

oa

G. Conclusion Concerning Health Effects cf Formaldenyde.

Appendix: Charts #1 and #2

‘i

Caus az ion . . . *. * . > . . > . . . * . . > . . . . . . * . Se
A. Inferezces Drawn from the Evidence.

B. ments’ Arguments Concerning Causatior.

~~
.

Formaldehyde Esissions from Sources Other than: UFFI ané in

Bchtevir. Homes.

(a) Formaldehyde Emissions from Products Other than UFFI.
(>) Formaldehyde Levels in Non-UFFI Homes.
(ec) Conclusion.

s
2. Amount of Formaldehyée in Outside Ambient Air and in Nese
UFrri Scenes. ;
3. The "Therzally Efficient House” Effect.
C: Overall Conclusions Concerning Causaticn.

Vo. Characterizaticn of the Frequency of Occurrence of Adverse
Bealth Effects Due to UFFI. . . » se ec wveseveeawee 6 OT

A. Number of People Whose Eeaith is Adversely Affected by UFFt.

‘ 2. tumber of UFFi-Iastaliecions in Massachusetts.
i. iscussion.
2. Conclusicns.
C. Conclusion Concerning Frequency of Health Effects. r
a
:3

Vizz. . Advereptives. toe Ban ef OFFS. 6 0 wb kc 6 Sy oe oe Oe
A. Recedies for Individual Consumers.

1. ‘Remedies Porpesed ty the UFFI Industz;.

2. Otservations by Jor-industry Fecple other chan Consumers
Concerning the Efficacy of Remedies Prorosed sy Iadustr;.

3. Constmer Experience with Renedies Proposeé ty the indust=.

(a) Consumer Experience as Reported by NAUFIM, for which
: ' there was no Consumer Testizony.
(>) Consumer Experience which was Reperced by NAUFIM and by
the Consumer ia his or her Testiscny.
(ec) Consumer Experience Which was Reported ty the Consumer
Only.

4. Conmelusions Concerning Remedies.
3. Licensure of Installers andReguletion of Installation Standards.
i. Discussion.
2. caclusions Concerning Licensure of Installers and Regulevion
of Isstaliation Standards.
Cc. Latellins.

ee Zecoemse Tapact| of a 3en eof UFFI. «cue o's 8 es ete 6 ee aoe
,

A: impact of Saznsing USTI.
a. ispact on Masufacturers.
e. s=apact on Distributcrs and ins) Esergy Cost Impact.

3. mpact of Keeping Urri in Commerce.
Ce Cosclusions Concernisg Econemic Ispact of Sansiss UFFI.

yi Temetineet. Demeer 3 6° 66 oe 2 0 Htc ete we oe he g

.'

4

Xi. Findngs and Declarations Concerning Formaldehyde and UFFI . 107

>

\

x

a ‘ f - ~ +
: “ - + = = . * .
rs St, Sa okie : oe op. 1 ee 4 ~ ,
BP Se Se Roe pet eee hte i Pe mai x

a

AYMARY OF TRE EVIDENCE AD
FIUDINGS AND CcuCLusrons
CONCERNING FORMALDEHYDE AND UFFi

-

Introduction:

This summary reviews she extensive evidence sresented by interested >eorl
pursuant to the March, 1979 public hearings concerning urea-formaidehyce foax
insulation (UFFI). It also provides certain findings and conclusions. in
order to provide an overview of the contents of the summary, this introductics
will consist of az annotated outline of each of the topics reviewed in the
summary itself ia the order in which they appear:

I. introduction.

Chemical Cosmsosition of UFFl.

? er

_ Tais section provides a brief backgroune on the chemical compenenc= UTFTI.

Sutsecticn 3 locks at the availetle scientizic tests showing whether formalée-
nyse is released from UFTI and, if so, hov much is released.

Sussecsiosn C draws conclusions ccncerning formaicenyce esissions fron U?Tz.
V. Seaiss S2tects of Forzaldervdée.

This section reviews the available evidence concerning health sy=rtczs
associated with formaldehyde exposure. = is subddividced as follovs:

A. Anizal studies.

B. Workplace studies and occupaticzal standard
¥

C. Clinical asc epidemiological studies.
D. Specific health effects on children

Ze Expes~ opisions cconcersizg the irritating, sensiticing end toxic
-—_-s
properties of formaldehyde.

F. ixper= crisions and regulatcry standards concerning safe levels of
Scrmaldehyde vascr in hemes. ;

G. Coaclusicz.

Sutsecticn A discusses whether UFFI is a cause of séverse health effects.

cmis subsection dravs urcr saterial presexted in pricr parts of this review

insofar as it shows whetbker there is a link between UFTI and adverse healt:

effects.

ol
—_—_—_

Sutsectic=n 5 discusses cpponents' argoments concernizg whether UFFI causes a4
, ‘

Seals aserzv.e P % *
\ - 3 ¢
Sussecandonmenc
of che home, symptoms disappeared. Each of these facts is evidence of chis

causal cenneccion.

Reports from scientists with experience in this area in other states corroborace

the informacion reported by Massachusetts consumers. Professor Breysse, Ms.
Woodbury and Dr. Zenz describe eye irricacion, upper anc lower respiratory
irricacion, nausea, and headaches among the symptoms reported by UFFI consusers
in other staces. The reports of the Consumer Product Safecy Commission are also
consistent with these reports. Ms. Woodbury'’s summaries of the Wisconsin

experience also indicate that infants are especially severely affected.

Rene KF eWvseee@erk esr eo

When these symptoms first appeared in a substancial nu=zber of Massachusetts
home-dwellings after insulacion with UFFI, sany people delieved that che symptoms
were related to exposure to keratin” one of the sajor componenc ingredients
in UFFI. The Deparcmenc of Public Health proposed to ban UFFI because of the
‘Siealhabende ic bears and emits into the air of insulaced hoses. The dulk of
the sciencific testimosy at the public hearing centered on wheeher UFFI exits
formaldehyde and, if so, whether the forsaldehyde emitted accounts for the
adverse healsh effects experienced by UFFI consumers.

‘Seccions III, IV and V of this review will discuss these issues. Section
III will discuss whether UFFI emits formaldehyde inco the hoses in which ic is
installed and, if so, how much. Section IV describes healch effects known to
be induced by formaldehyde exposure. Section V then considers whether che
health syzptoms experienced by Massachusetts UFFI consusers are characteristic

of forsaldehyde exposure, and, if so, whether the sympctc=as were caused by che

formaldehyde emitted from UFFI.

'~

Throughous this review cf che evidence, the word “forsaldehyde” will refer to
caaldenyde in vapor fors.

o

earec as
+) 77> for the purpose of these averages.

-32 levels inside
scces: @ Louisiana cast by Borden, Inc., (0. Ex. 140); tases by Cl3a-GE5G7
(0. Et. 49); amd a formaldehyde out-gassing tast by Dr. Firscocan (0. Exs. 14-16).
Tor the proponencs, we have evidence showing the formaldehyde vapor levels ic eos
ssses of cr consumers tasted under state auspices in Massachusetts, Commecsions
acd Sashbingeor.

a. Loutsiana Studv (0. Ex. 160)

The Lowisiana study relied upon by Borden, Inc. was conduccad

is a single hoce cover a period of appteximacaly one conch. Alsbough offered as

5

evidence of che cverall exission propercies of Jorden’s foam, this test «ppears to
¢dassuscvace che eacuns cf formaldehyde emisced ducing che coring POE Sali Urs
was izscalled i= che valls of an existing home on March 25, 1977; che come vas
seasced for formaldehyde vapor on March 29, 30 and 1. Te resulcs show scant
istmaidcebyde exissisns i= sost rooms immediacaly afcar iasc2lia2zction. The caci=s
Sssmaldehyce levels reporced vere .007 ppa in‘che Living room, 1.4 pepe “"aiz=
condision condensate” and 2 ppm ac a crack in che vesc zall.

The sesc d4d soc purpors co decersmize fommaldebyde exissicn cver che lita

of she insulacisc.

t

Opponencs’ Exhibis #122 also reporsed cescs conducted by Co34-GEIGT ic ste
Uaised Kingdom, wishous appending copies of cast resulscs. one of chase
sasts specitically seasured formaldehyde exission.

Oppetencs’ Exhibic #125 includes resules cf formaldehyde vapor casts ic
13 homes insulated wich UFFI by New England derclises. The study was act
ssapleced. Almost all 18 reported less than .5 ppm sceording co che exhtic.

4

The study subcicsed described 4 series of casts in cue home ever 4 days.

o. Ex. 140, Oe. Cumin cescified chat che formaldehyde levels in the sace

Some were cested cne sench later (T. 2-247), bus d4d aoe submis any documencacicn

teflecting chat cast resuls.

-i3-

>. CodA-GE=CT? Teses (0. Ex. 49)

Ca3a-GElGT conducced cascs on cured foam under conscanc
cgcperasure anc Sumidisy csadisicns. The cemperatures and bumidictes eo which
sse isam vas subjected vere incesded to approximace che sost severe condiscices
experienced in UiTI homes. These tascs showed chat 13 days of aging at 158°F
as¢ 10CZ relacive bumidisy produced only crace amounts of cunihateeein. ae

¢. Foss sescts . Exs. lénlé

De. Firscman submicced exhibics excisled "Formaldehyde Concemcca-
ston Data Wincar” and “Formaldehyde Concentracion Daca Summer” descotbing 2 cumber
of somes i= che sorctheasc vhich ha considered cepresencacive of bores wish "norcal
'Uit-] tcsulasicn expertesce wish varying ages of Scan." His casts vere coc
‘stended so Sevescigace exccecme cases, but cather mmen= purposes, Ss. Fisscman believes che cascs do sot sceflece 2
sae candam sample. OC. Exes. 1é—l16. |

The wisses chasc lists S2tceen comes i= Jew York scacea, eleven insulacad with
SIFZ end four hones vichcut foam icsulactcn. ‘The chart states the level of fomalée~
sy¢e coacenstacisn in pasts per siilicn (ppm) sech oucside che hone and ‘= varisus
sseoms iasice she home. Oppomencs Exhibis 15 scasas shac the wiscter datz aas
sbcained during cold weacher sonchs of January end Februacy7, 1978, when “houses
showed .1 cs 1.0 ppe; and i= showed
+-9 so 2.9 spe aldenydes.

The T.A. test does not isolate formaldehyde, so it is not necessarily @
reliable indicator of formaldehyde emissions from UFFI. See, generally, discussicn
of T.A. tests at 0. Ex. 9(a)(2), pps 83-86; 0. Ex. 9(u), p. 85.

The Massachusetts state laboratories also ran a series of tests using the
chronotropic acid test (C.A.T.). One hundred ninety-eigne (198) tests were
conducted using this method. Sone homes were also tested by industry representatives.
These hones are not randosly representative; again they reflect 4 pool of concerned
or troubled UFFI consumers who initiated contact with state officials.

According to a summary prepared by the Execurive Office of Consumer affairs

the C.A.T. tests done by state personnel show:

Fortaldehvde Level (pon's) No. of Homes — z of Sample
, 0.0 42 12
Trace - .02 68 342

.03 = .0S . 46 23%
ol = whi 42 21%
TOTAL 198 99%

P. Ex. 87

In sone instances we were provided with industry test results to supplesexct
stete test results. The McGlew home, for example, was tested by the state ia
Sune, 1978 on a hot, humid day, showing formaldehyde at .4 ppu. NAUFIM measured
.O71 ppm and .225 in February, 1979 when the hunidicy was 47%, and che temperature
35°%-42°F. We cannot compare and assess these ciiferent test results, however,
as the testing conditions vere not controllec (for example, the weather conditions
were not necessarily similar on the days of the two different tests).

e. Washington tests (P. Ex. 17)
In Washington, an uncontrolled sacpling of UFFL homes was cested

by the Deparcsen: of Environsental Heaish. a total cf 29 heces vere tested,
representing only those people reporting Ssy=ptco=ss oF other reasons for conce==

ebcut UFFI. The tests resul=s showed:

2 of Sanvle

27%
53%
6%
14%
TOTAL 93 100%

mm
.

Connecticut tests (P. Ex. 3)

State agents in Connecticut conducted tests using a Drager
Tube analysis. These results therefore cannot be cirectly compared with results

in the other states. The test results showed:

TForzaldenvde Level 's) No. of Homes Z of Sample
a 21 502
$- 1.0 11 262%
1.1 = 2.0 6 : 14%
2.0 = &.0 3 7%
7 ‘ | 2%
TOTAL 42 992%

Se Conclusions concerning Formaldenvde Esissions ‘from UFFl.

The laboratory tests described above demonstrate that UFFI enits
x
formaldehyde. Expert opinion indicates that the extent of this release is affected
by tesperature and humidity condicions.

“The acbient air tests do not provide a foundation for concluding precisely
how much formaldehyde will be found in UFFI homes on account of vapor emissions
from UFF insulation. Ambient air tests showed formaldehyde readings from 0.0 ppo
to 1.0 ppm using the preferred C.A.T. test method in Massachusetts, Washington
and New York. Figures ranged from .5 ppm to 7 ppm using the less accurate Drager
tube analysis in Connecticuc.

We lack tests controlling other factors that affecs the vapor enission
properties of the foam, such as teaperature and hunidity conditions, portion of
the hone insulated, installation technique, etc. We also lack tests isolating
UFFi-caused vazor from vapor present due to cther sources of forsaicehyce ia

the hose.

Overall, the evidence submitced indicates that UFFI releases fornaldehyde.
The amount of formaldehyde vapor that this emission say cause in ambience air i
UFFI homes depends on a number of factors and is noc quantifiable based on che

evidence available.

v. Wealth Effeces of Formaldehvde Ex>osu

This discussion will review briefly che available evidence reflecting
the health syaptoms associated with formaldehyde exposure in the Zollowing
order:

A. Anizal stucies.

3. Workplace studies and occupational standards.

Cc. Clinical and epidemiological scudies.

Dd. Specific health effects on children.

° Expert opinions concerning the irritating, sensitizing anc
toxic properties of formaldehyde.

F. Expert opinions and regulatory standards concerning safe
levels of formaldehyde vapor in heses.

G. Conclusion.

A. anizal Studies.

Anisal studies constitute the bulk of the available evidence reflecting
.
adverse health effects associated with inhalation of formaldehyce vapors.
The effects induced in small mammals (rabbits, rats, mice, dogs, cats) range
fron irritation and inflammation of the respiratory tract to convulsions an
death, depending on the dose, the duration of the exposure and the species of
anisal among other factors. The most common observations include evidence of
lacrination and respiration difficulty. The evidence supports the con iusion
that the extent of injury is directly related to dose and exposure duration.
The fact that formaldehyde vapors are injurious finds support in aimost
all of these studies. Adverse health effeczs have been induced in anizals at
exposure levels rangizg from .05 ppm to 7830 ppm. Exposure durations have rangec

fron a few minutes to 90 days. The mammals so exposed have exhibited sy=sptors

that are now commonly associated with formaldehyde vapor exposure: crespizz2:ory

° j . ee OO ee meme Ort on Bee ere qnestings “+
dnterzZerence, irritation, lacrisation; high doses resulz in vomiting, cra=zping
aad death. See P. Ex. 63(e) at p. $17 and 0. Ex. 9{a) at pp. 156 et. one: fie
charts showing sy=ptoms experienced by sammals in forsaldehyde vapor tests.

The abatesenc of symptoms once exposure ceases is another characteriscic of

forsaldehyde exposure revealed in anisal tests. See, e.g., T. 228.
‘ More controversial hypotheses describe how or why the vapor has these decri-

sental effects. See, e.g. P. Ex. 63(e) and P. Ex. 42; compare T. 2-306 co 307.

None of the anizal studies address the precise question facing us, however,

because none involved long term exposure to forsaldehyde gas. The longest

tise period over which animals have been continuously exposed is just 90 days.
Tne 90-day tess was compissioned by the U.S. Navy and conducced in 1969. Five
species of sammals were exposed to air-dorne forsaldehyde ac 3.8 ppa for $0
¢ays in order to determine appropriate air standards for Navy submarine
serscnnel. 0. Ex. 141. One of the rats died. None of the other anisals shoved
any signs of iliness er toxicity according to che study authors. Hematologic
values were normal. On hiscopachologic exazs, the lungs of all species snowec
varving degrees of interstitial inflammation. The hearts and kidneys of guinea
pigs and rats showed local chronic inflammatory changes. The study's authors
were uncertain whether these changes were cause¢ by fornaldehyde inhalation, and
considered shat, in spice of these findings, "sost parameters were essentially
nornai” in che study sudjects. The report concluded, "however, the death of
1/15 of the rats indicates the need for additional studies."

Although opponents have cited this study as proof thac formaldehyde és
non-toxic over 90 day exposure (0. Ex. 138), the study authors were unwilling to
érew thac conclusion, finding racher that che single test they conducced for

forcalcehyde provided an insufficienc basis for a confined space guiceline.

il

- The governzent agency setting Navy submarine standards based on that study
reduced the 90 day forsaldehyde limit to .5 ppm, less than 1/7 che cesced level,
apparently without further comsenc. 0. Ex. 142.

One of the studies submitted by Drs. Kane and Alarie included two seviek
of tests designed to measure the effect of repéated daily exposure. P. Ex. 63(e).
The first series exposed the mice to 3.1 ppa for three hours each day for four
consecutive days in order to determine whether che mice became sensitive or
tolerant to the gas. Tests results revealed that the saxizum effec: on the
respiratory rate increased each day when the mice were exposed over 4 consecutive
days.

A second type of repeated exposure involve pre-exposing the aice to a concen=
tration of .31 ppm for 3 hours per day for 3 days, and then seasuring the
respiratory rate decrease on the fourth ¢ay after a single ten-ainute exposure
at higher concentrations. Results showed chat the pre-exposed mice did not react
differently than control specimens to che single, higher exposure on the fourth day.

These resulzs suggest that repeated exposure to 3 ppm or sore may cause.
increasingly severe symptoms; .31 ppm or less say avoid an increasingly serious
response in the very short term. These results remain serely suggestive of che
long term effecc of repeated daily exposure, however. |

Wells Laboratories, Inc., an independens testing laboratory, has concucted
a series of aninal tests on UFFI at the request of Borden, using 2 test sethoc
for "toxicity" and "irritancy" set out in federal regulasions under the Federal
Hazardous Substances Act (16 C.F.R. s.1500.3(c)(1) and (2) and s. 1500.41-42).

O. Ex. 143. The toxicity tests exposed rats to UFFI foaming agent and reagent
in sist forn; the rats also ishaled fresh and cured sazples of UFFL, pulvercces
acd ectinistered as a dust. These substances proved non-texic according to the

particular test (a substance is toxic under this test standard if half or sore

cf the rats ¢ie within fourteen days).

The irritency tests showed thac UFTi foaming agent and fresh and cured sacples
of UFFI were all non-irritating according to che test standard. The UFFI reagenc
orocuced sinisal izrication on abraded skia only.

These szucies did not test the toxicity or izrisancy of formaldenyde.

we lact anizal tests on formaldehyde using the precise federal toxicity or
irricancy protocol. It is clear thac these particular anizal test methods and
standards are not mandated under the federal regulations. Further the tests are
of limited usefulness with respect to formaldehyde and UFfI. The anis wid tes:
for jnhalation of toxic substances under these standards involves exposure to 202
to 29, 000 parts per sillion by volume of gas or vapor, but only if such concensta-

tion is likely to be encountered when che substance is used in any reasonably

forseeasle canner. As formaldehyde is not lixely to be encountered in such

concentrations, even if these tests were used to seasure the effect of fornalidehyce -

vapor on rats, they would sot be relevant.
‘
Experts for both proponents and opponents agreed that there is a very serious
need for testing of the long-cera efieccs of forzaldehycée vapor. Witnesses at

awd --

the puslic hearing used such words as "desperate" and "“urgenc” to describe th
The anizal evidence nonetheless provides documentation of the daverias
influence of formaldehyde vapor on living tissue. Drs. Alarie and Xane believe,
based on the available information, that seasuremencs of respiratory rate
decrease in anisals appear to be reliable in predicting that an airborne chesical

will evoxe sensory irritation in humans. P. Ex. 63(c) and 63(e). On the whole,

other evidence received does not contradict this opinion. Compare 0. Ex. 109.

& mumber of workplace studies were reported in the documents and testiscenyr
sroierred by beth opponents anc proponents. (see, e.g., O. Ex. 9(a) (2); O. Ex.

S(t); O. Ex. $(a); T. 281 ex seq; P. Ex. 63(e); T. 526; O. Ex. 109). ;

en,

(

;

These studies revealed complaints of irritation and other acverse physical
effects frea formaldehyde vapors at particular concentrations. Significanc
decreases in the function of small airways of che lung over che course of a given
workday have Seen reported. T. 73. Workers have experienced annoviag odor,
constant prickling isricacion of aucous senbranes, thisst, heavy ceariag, and

discussed sleep over an 8 hour day. P. Ex. 18 (alse included in 0. Ex. 9(0)).

Pont. Saddle SO tee ot + WS pene + a ae, i ell Rad aie te ee

Tearing and irritation of eyes, nose and throat are commonly reportec. The
Senstrual and reproductive functions of women have also been implicated. For a
review of available occupational studies, see 0. Ex. 9(u) at pp. 128 et seq., O.
Ex. 109 and Chart #2, appended at page 62 of this summary.

Chart #2 correlaces the symptoms reported by workers with the formaldehyde
concentrations to which they were exposed. Characteristic symptoms of forcalde-
hyde exposure have been reported at levels as low as .13 = .45 ppm, although
we do not know how sany workers reported these sy=pcoms or whether these workers
were also exposed to other noxious gases as well. Synptoms are reported on
exposure over a range from .13 to 3 ppm.

Dr. Craigen, a wedical practitioner in England and Divisional Medical
Officer ac CIi3a-GEiGY, Led. ceseified thac he is in che process of conductiag

trospeccive survey of the past health records of CIBA-GEIGY workers exposed

pw

rt

to formaldehyde and comparing them to data taken from a survey of the consultacion
tates of 1,000 people in the general population. Describing his resules to dace,
Dr. Craigen stated chat there is no "parscicularly striking partera of diseases
when cosparec with the figures seen in the general population, apart from che
expected increase in contacs dermatitis and increased incidence of ncsebleeds."
T. 285. The difference in aumber of nosebleeds appears to be statistically
sigaicicance according to Dr. Craigen. T. 291. Although exact figures are not
available, Dr. Craigen estimates that the workers surveyed were exposed to
greater chan 5 ppm forzaldehyde. The average forsaldehyde level today ina
CiBa-GEIGT piancs is 2.35 ppa.

The chare submitted by Dr. Craigen outlining his survey results shows a
Crasatic cillerence between she exposed workers and she general pcpulacicn
in pleurisy, pneumonia and pneumonectoay, although Dr. Craigen does not

-

senction chis difference in his cestisony. See 0. Ex. 17. In toec, a nuster
of potentially very serious health conditions appear in the health records of

. exposed workers that do not appear in the general populacion files. The survey

is noc yee coaplete.

These studies have provided the oasis for recommendations and requirements
lisiting occupational exposure to formaldehyde gas. The sose oft-ciced workplace
stancards iaclude one sandacted by Occupational Health and Safety (OSHA) regulations
(29 C.F.R. s.1910.1000, subpart Z) and the somewhat ‘lower level recommended dy
the National Inscitute for Occupacional Safety and Health (NIOSH) (0. Ex. 9(a)(2)).
Cproments argue that these stancards reflecs findings that forsaldehyde vapor is
sale at the eae pe levels of exposure peraitcred in the workplace.

The OSHA stancard requires that formaldehyde exposure noc exceed 3 pp= as
an 8-nour tise weighted average in any 8, Ex. 63(e). Experts for the opponencs have also described an accomodation pattera
as characteristic of formaldehyde exposure (see, e.g., T. 2-226), and have further
noted that symptoms abate in humans when contact with the chemical ceases. See,
e.g., T. 2-264 to 265. 7
Bodies like NIOSH specifically caution that "this standard was not designaced
for the population at large and any extrapolation beyond the occupational
environsent is not warranced.” 0. Ex. 9(a)(2) at p. 17.
All of the evidence, without exception, indicates that we cannot fairly
ucilize workplace standards as evidence of safety for home use. Those experts
who were asked to estimate the level of exposure thac vould be safe in homes
uniformly escisated that such lower level of exposure would be necessary ia
heres than in workplaces.

$. Clinical and Esidesioloeical Studies on Humans.

We lack epidemiologic and clinical studies of the long-ter= effects of

formaldehyde vapor on humans. As with aninal studies, the sost serious
deficiency in our knowledge concerns the effecc of concinuous exposure over iong
periods of tise. The number of studies are few. Representative studies are

é¢iscussed below.

99

1. One Soviet clinical study was conducced in 1971 on human subdjeces, aged
17 to 44. The subjeccs were subjected to four forzaldehyde vapor concentrations
tanging fron 54 thy to 90 re, (approximately .046 ec .075 ppm). Forsaldehyde
at a concentration of 73 hela (approximately .06 ppm) was detected by 7 of the
15 cescs subjects. The "“sudlisinal concentration” was 54 =. (approxinately

.046 ppa). When che 5 subjects shown to be the sost sensitive to odor vere
3
given Z2G's, concentrations of 53 ag/m. (approxi=ately; .046 ppa) produced

reliatie changes in she cerebral elecesic activity in all of che sudjeccs. A
3
concentracion of 40 sg/a (approxisately .035 ppm) exhibiced so e:fecc on

cerebral bioelectric activity. 0. Ex. 9(u) at p. 122.

yi

*. * Pewee... ee emt a tile i at. te gaia em

y F Another Seviet study in 1968 subdjecced 11 pecple co 14 formaldehyde

tests. The tests revealed an oriencacion reaction, odor, irritation of the
3
upper respiratory tract, acceleraced breathing and ECG changes ac 1000 =ag/s
3
(approxisately .8 pps). Exposure cto 300-400 ag/m (approxisacely .30 ppm) resulced

2a an orientation reaccion in sost subjects and an edor response in half the subdjeccs.
No significance EEG changes were recorded. 0. Ex. 9(u) at p. 123.

The level cf forsaldehyde exposure which produces significance EEG response
éitters by a 7 of 10 in these two Soviet studies. Sufficiens inforzation
on experisencal cechateicke and collected data is not available to evaluate the
results of che studies according to the EPA report in which they appear.
“additional well-controlled husan exposure studies to low concentrations of

Sormaldehyde...are necessary to establish to che subtle effeces of this chesical

on che body." Id. at 123.
3. Stace Health Deparcsents in Wisconsin and Washington have concucsced

x al

extensive surveys of people with health conplaincs associated wien forzaldehyde
vapors exitcec by UFFI and/or particle board. These invescigacions were
Careful and sherough, but were lisised to complaining parscies end cannot be

consicered equivalent to a true epidemiological study. The evidence gathered

by Prot. Breysse ac the University of Washington and by Mary Ann Woodbury anc
Dr. Carl Zenz on behalf of the Wisconsin Division of Health nonetheless con-ri-
butes co the scall asoune of evidence of the effects of formaidehyde vapor on
humans presently available

Prof. Breysse's work was done for the most pare in mobile homes. ts original

Ssazpling compiled che syapceas of 92 people in 74 sebile hemes who experieaced

acverse reactions Selieved aterisucasle to formaldehyde. His resuics showed:

quse o- — o cote 2 Ge MR, tee- Hs PSe ot- =.

Number of People

Svsorcxs With Svsotos

Issicacion - eyes 80 87%
- nose . 12 13%
- respiratory tract 5é 63%
- headache $1 . 552%
- nausea 12 13%
- drowsiness* 26 282

*Notce: Sometises described as lapse of sescry.

In addicion he reported that some people felt chr onically iii and a nusber

sesticned difficulty in breathing. Some very young children experienced chronic

problecs. For exasple, one newborn experienced chronic
ancther hose, a two year old had a constane cold while a chree sonch old sutferec
chronic runniag nose. In one home a year old child had a chronic low grade fever.

One xo year old suffered from asthza. another svc year old had chronic ear infecsion

acknowledging that all of these reportec sy=aptocs
B==3

freoz scurces other than formaldehyde, Prof. Breysse also pointed ouc thas all
people reporzed relief from sy=uptoms while away from hone on weekencs or, vacations,

and rapid onset of che sane symptoms on returning hose.

physician wichout success.

Apparently after publication of Prof. Breysse's early sobdile hone resulcs,
Prof. Breysse investigated 39 complaints receivec from people with UFFi-iasuliacec

heses in the Seattle area. The homes were tested for formaldehyde levels and

Tesersed svaptcss were acted. T. 120-5. A susmary of

investigations indicated thac 14 adule sales, 18 aduls

excerienced the following sy=ptoss:

P. Ex. 18, p. 7.

respiratory problems. in

could have originaced

Many saw sore than one

the resulcs of these

females, and 12 children

-eyes
“nose

“respiratory

trace

Chronic
headache

Chronic
nausea

Drowsiness or
sesory lapse

Chronic cold
Chroais cough

Chronic
sneezing

Tw.
D2 fFiouley } 0.5 co 0.99 2 1 3 6
> 0.10 to 0.49 21 13 15 49
— °° 2 we see — *. % oo STFS.
>

Yhese cpponents do not, ho

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0333%3A3. Public record. Not legal advice.