# Petition for Writ of Certiorari — Firestone Plastics Co. v. United States Department of Labor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0753%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 420 U.S. 1002 ## Text | REME COURT. U. @ rtcteD IN THE Supreme Court of the United States OcroBeR TERM 1974 no. €4°1185 FirEstoNE PiLasrics Company, a Division of THE Firestone Tire & Rupper Company, UNIon CARBIDE CorPorRATION, and THE Society oF THE PLastics INpusrry, INc. Petitioners, v. Unirep States DeparTMeNT oF Lasor, JoHN T. Dunwop, SecrETaRY, U.S. DEPARTMENT OF LaBoR, JOHN H. Srenver, Assistant SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, and INpUstTRIAL UNION DeEpart- MENT, AFL-CIO, Respondents. _ ee PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT March 19, 1975 (CouNSEL ON INSIDE OF CovER) ‘ Press oF Byron S. ADAMS PRINTING, INC.; WASHINGTON, D. C. ST ee ree PROT eT ee RT RT Te eT eee sn te a ee ~ ' , ) ' Of Counsel: Joun J. Cassipy, Jr. Nina G. STILLMAN VEDpDER, Price, KAUFMAN & KaMMHOLZ 39 South LaSalle Street Chicago, Illinois 60603 Telephone: 312/346-5544 Leva, Hawes, SyMINGTON, Martin & OpPpENHEIMER 815 Connecticut Ave., N.W. Washington, D. C. 20006 Telephone: 202/298-8020 Kewier & HECKMAN 1150 17th Street, N.W. Washington, D.C. 20036 Telephone; 202/296-2700 * SPO IE LESTE BERGE IE LER INE LL QE DELI ILE LOLLY NIE MIME CIES LEI IE Water B. Connouy, Jr. 1200 Firestone Parkway Akron, Ohio 44317 Telephone: 216/379-7000 Craig MATHEWS Joun S. Horr 815 Connecticut Avenue, N.W. Washington, D. C. 20006 Telephone: 202/298-8020 Attorneys for Petitioner FIRESTONE Puastics CoMPANY, a Division of THE FIRESTONE Tire & Rveper CoMPANY JoHN W. WHITTLESEY James V. Murray 270 Park Avenue New York, New York 10017 Telephone : 212/551-6797 lttorneys for Petitioner Union CarpinE CorRPORATION JeroME H. HecKMAN 1150 17th Street, N.W. Washington, D. C. 20036 Telephone: 202/296-2700 Attorney for Petitioner THE Society oF THE PuLastics Inpustry, Inc. EALERTS | Bieretione cht TABLE OF CONTENTS TEER en pe ea rae JURISDICTION ...... A te ea eee rete Questions PRESENTED ...............-..-----+--+- ConsTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS LSS ORE LEE ETO PEELE ELS STaTEMENT OF THE CASE .............- FoR Gh a aes Nee NE SAO Ot le to kins kale 9 Bisa le RN 8 OSHA Proceedings Concerning Vinyl Chloride _. The Final Standard kee cat ene Wik dnd 6 Vee The Hearikg ................ ceieyie® etre ere ae ee eee 2. ‘Technological infeasibility ............. 3. Economic infeasibility ..... ..... The Secretary’s Principal Findings and Conclu- ee ee tee ony in Ge Ch Aen > eo. 1. Medical considerations ................... 2. Infeasibility of compliance .............. 3. Purported justification for the standard... 13 ie A NE i rss ee So key Rea 14 Reasons ror GRANTING THE WRIT ..... tad, Oe nae Te 14 1. The Court Below Improperly Refused to Apply the ‘‘Substantial Evidence’’ Test Required by NS or ct rene Gata e ca ss 15 2. The Court Below Improperly Failed Even to Consider the Extensive Evidence Contrary to the Secretary’s Determination............... 19 LR ALOR AE POPES EG MIA STE Ge YN ACE A CP ONS Fo E ii Table of Contents Continued Page 3. The Court Below Improperly Interpreted the 4 Statutory Requirement that the Secretary’s E Standard Must be ‘‘Feasible’’............... 21 4 | (a) Technology-forcing ..............-..---- 22 3 (b) Differing compliance capabilities of the 3 VCM and PVC industries............... 24 (c) Economic feasibility ..............-...-. 25 : 4. The Court Below Improperly Allowed the Sec- retary to Adopt a Standard Which, Because It ; Merely Repeats the Statutory Criterion of : ‘‘Feasibility,’’ Violates the Legislative Re- i quirement That the Standard Must Be Stated : in Objective Terms, and Is Also Unconstitu- ; tiomally Vague ... |)... ...-2---2--e eee reese 25 CoNCLUSION ....... Ae as ans || Sh tat ira ite edna ea 27 sd gy SO al RENE RMN ee COR RRS la pS Tee pamearent | Sanpete ANE Erm ie 2la LSS SUT yene |» Pani ilere sk Sener rar ear 63a TABLE OF AUTHORITIES CasEs: Associated Industries of New York State, Inc. v. De- partment of Labor, 487 F.2d 342 (2d Cir. 1973) .. 16,18 Boutilier v. Immigration and Naturalization Service, Be Ti Be ED ee rena ee ie weccea seeds 27 Chrysler Corporation v. Department of Transporta- tion, 472 F.2d 659 (6th Cir. 1972) .... ........ 2, 3, 26 Connally v. General Construction Co., 269 U.S. 385 tener Morr Sree esta Cee 27 \ a aa ad lat POSIT PO OOS SOBER EMEA A OGRE ESSE RETIN FLL Ns FE ITI BAIT TE, Pe é - mcrete ies So . aici | SER SP EE ALB ELEN LL ON DYES ISLO AEE BTL SENAY ENG ISIE ee Table of Authorities Continued iii Page Dry Color Manufacturers’ Association, Inc. v. Depart- ment of Labor, 486 F.2d 98 (3d Cir. 1973) ........ 17 Ethyl Corporation v. EPA (No. 73-2205, D. C. Cir., Jan- uary 28, 1975) . Be RL eae Hd es 20 Federal Trade Commission v. Colgate-Palmolive Co., Oe OE Oe Be Ce aes een ee lee 27 Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120 (5th Cir. WOU, os oo a ohn haa Bh hae ees Baers 17 Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974) .........----- 20, 24, 25 M. Kraus & Bros. v. United States, 327 U. S. 614 (1946) 27 Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390 (5th Cir. 1974), cert. granted sub nom., Train v. Natural Resources Defense Council, Inc., 42, L.Ed.2d 46 (1974) (No. 73-1742) ............ 23 National Roofing Contractors Association v. Brennan, 495 F.2d 1294 (7th Cir. 1974), cert. denied, 42 Ste FB nen ae 17 Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 |) SR AKare sr PERC a re PCr. Ree 23, 27 Synthetic Organic Chemical Manufacturers Association v. Brennan, 503 F.2d 1155 (3d Cir. 1974), petition for cert. pending (No. 74-789, filed December 21, MNS ciacioays a inkegeier sen aa etek eee 17, 18 United States v. Mersky, 361 U.S. 431 (1960) ......... 27 Universal Camera Corporation v. N.L.R.B., 340 US. MMOD ie er ee eek ye oe ens 16, 19 ee | , ; ' 5 ¥ S 1 { 4 P ' ; ‘3 iv Table of Authorities Continued Page : ConsTITUTION AND StatutTEs: { Constitution of the United States, Amendment V 4 Automobile Safety Act, 15 U.S.C. § 1381 et seq... 28 4 Clean Air Act, 42 U.S.C. $1857 et seq... ....... 98 3 Judicial Code: 3 WP SUE) ceca 2 i Occupational Safety and Health Act, 29 U.S.C. : Ie ye ce tt Ae 5) MUSE CMM. hs. 5 me ume §@eeCM) (1) ..... «22... ae. 5 Be Uderd. SOBATR)IS) ... oe es ccs, 5 ae USO. $G56(B)(G) ...... 2... cn, 4, 21, 26 } Rue see... 2, 4, 15 REGULATIONS: 29 C.F.R. § 1910.93(a), Table G-1 (1972) ............ 6 29 C.F.R. § 1910.93q: i 29 C.F.R. § 1910.93q(c) ........................ 7 j 29 C.F.R. § 1910.93q(f)(2) ................. 8, 26 | a0 O.F 3. $ 1011.15(b)(2) ..................0002..,. 5 or I voy Sys e le ek 7 : OrHeR AUTHORITIEs: S. Rept. No. 91-1282, 91st Cong., 2d Sess. (1970) __.. 21, 23 116 Cong. Rec. 42206 (1970) 1k ae iter ne ee ek oy 16 116 Cong. Rec. 36512 (1970) ................. ...... 23 116 Cong. Ree. 32901-2 (1970) .. ....... 23 ca sh TICLE ROM ES BGS RST, RAI EG ND TNL E AMY OS SE eNOS THERES GALE TIM REL Ge i ERE PA ae or ee ’ soe “ ia aber, —s ae pesctve 2 . 3 es ewe SAN DON Ree AY ee at EE aT ee eI IN THE Supreme Court of the United States OcroBeR TERM 1974 No. Firestone Puastics Company, a Division of Tue Firestone Tire & RupBeER CoMPANY, Union CARBIDE CORPORATION, and Tue Society oF THE Pxiastics INpustry, INc. Petitioners, v. Unitep States DEPARTMENT OF Lasor, JOHN T. Duntop, SecreTary, U.S. DEPARTMENT OF Lasor, Joun H. Srenper, AssisTaNT SECRETARY OF LAaBoR FOR OCCUPATIONAL SAFETY AND HEALTH, AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, and INpustRIAL Union DEPART- ment, AFL-CIO, Respondents. — PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Petitioners pray that this Court issue a writ of cer- tiorari to review the opinion and judgment of the United States Court of Appeals for the Second Circuit entered in this case on January 31, 1975. . RH, . OHA GT OS A RP EINE OES gt Fey Iw eI TN aah - - : ¥ cst ait SNS pr, EID ES PU SE OI PT ra NE ees hE? Trego eee ee | n> ent Le ee ee ee ae ey Re Ss 2 OPINION BELOW The opinion of the United States Court of Appeals for the Second Circuit is not yet reported. It is set forth in Appendix A hereto, pp. 1a-19a. JURISDICTION The Judgment of the Court of Appeals was entered January 31, 1975. A copy is included in Appendix A hereto, at p. 20a. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1). The jurisdiction of the Court of Appeals was conferred by 29 U.S.C. -§ 655(f). QUESTIONS PRESENTED 1. Whether, despite the requirement of the Occupa- tional Safety and Health Act that the Secretary’s regu- latory standards issued pursuant to the Act must be “‘supported by substantial evidence in the record con- sidered as a whole,’’ the reviewing court may refuse to apply this test if the Secretary asserts that his standard is based on “‘policy judgments’? because the factual basis is insufficient ; and, regardless of the test applied, whether the court may refuse even to consider the evidence opposed to the standard ? 2. Whether, in light of the statutory requirements that regulatory standards must be ‘‘feasible”’ and must insofar as practicable be ‘‘expressed in terms of objec- tive criteria,’ the Secretary may promulgate a stand- ard that he concedes is infeasible; and whether he can cure that deficiency by requiring employers to meet the standard insofar as it is ‘‘feasible’’ for them to'do SO, without specifying in any manner what actions will constitute compliance? 7 wen EEA NOOB HOES GI Et ONG AAP RI ORS: Mei BOY PR RIN ROE OBR N NON OEE IRE a ABO oe ee PRED EET ch LAP cE TIG ILS is as OO MO ieee TET, Fs 6s eR 3 * * * Petitioners do not ask this Court to review the evi- dence of record. Rather, they ask the Court to decide the appropriate standard for judicial review of the Secretary’s determination and to decide other impor- tant questions of statutory construction and Constitu- tional law raised by the Secretary’s action and its affirmance by the Court of Appeals. Petitioners do not question the fact that viny: chlor- ide is a health hazard at very high concentrations. This ease does not, however, involve that issue. Rather, it involves the Secretary’s prohibition of exposures to vinyl chloride at virtually any level, even though he recognizes that the data are inadequate to establish a medical need for such a stringent standard, and even though he further concedes that the standard is not technologically achievable. The Court below refused to review the validity of the Secretary’s action in accordance with the ‘‘substan- tial evidence” test specified by Congress in the Occu- pational Safety and Health Act. Furthermore, the Court did not consider in any way the extensive evi- dence of record which shows the Secretary’s standard to be unnecessary and infeasible. In both respects, the Court did not adequately exercise its judicial respon- sibility as required by the statute. It thereby gave the - Secretary virtually unrestrained license to adopt stand- eee Oe ards without sufficient factual basis and without effec- tive judicial review. These are the errors of which Petitioners complain. Petitioners submit that this case presents issues of exceptional importance. They affect sound judicial practice, the Secretary’s future administration of a major federal regulatory program, and the viability of STGP EBA AS ite NEY bee AN — cree Oi ARs PUA MW LE EARLS MO NEN TS EEN gro DT — - myeacarp NEDA ORATOR EEE OP KMD —_— ia RAPE DRI CEs) an important domestic industry. Petitioners therefore ask this Court to grant their petition in order to resolve these questions. CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED Constitution of the United States: Amendment V: **...nor shall any person... be deprived of life, lib- erty, or property, without due process of law. ...”’ Statutes: 29 U.S.C. § 955(b) (5): “The Secretary, in promulgating standards deal- ing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Devel- opment of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate, In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practica- ble, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired.’’ 29 U.S.C. § 655(f) : ‘“‘Any person who may be adversely affected by a standard issued under tuis section may... file a petition . . . with the United States court of ap- peals ... for a judicial review of such standard. ... ‘The determinations of the Secretary shall be con- elusive if supported by substantial evidence in the record considered as a whole.”’ These and other relevant sections of the Occupational Safety and Health Act are set forth in full as Appen- dix C, pp. 63a-98a. Regulations: 29 C.F.R. § 1911.15(b) (2): “The presiding officer shall provide an opportunity for cross-examination on crucial issues.”’ 29 C.F.R. § 1910.93q, because of its length, is set forth in full as Appendix B, pp. 21a-62a. STATEMENT OF THE CASE The Act In 1970, Congress enacted the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. The purpose of the Act is “to assure so far as possible every work- ing man and woman in the Nation safe and healthful working conditions and to preserve our human re- sources.” 29 U.S.C. § 651(b). The Act requires every employer engaged in interstate commerce to provide his employees a place of employment which is free ‘rom ‘‘recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). The employer must also comply with occu- pational safety and health standards promulgated by the Secretary of Labor, 29 U.S.C. § 654(a) (2). The Secretary administers the Act through the Occupa- fombah act Wl YA ada ats Ee ei 4 ae wa eek IE PAN fol bucaise wet ath ad ies! Hove ENA IRAE PAM ARS Awe, Bates sir sciincrcmncrneric cas vs 6 tional Safety and Health Administration of the Depart- ment of Labor (OSHA). OSHA Proceedings Concerning Vinyl Chloride Corporate petitioners manufacture polyvinyl chlor- ide (PVC) resins by processing the vinyl chloride mo- nomer (VCM). Petitioner Society of the Plastics In- dustry includes members who manufacture VCM and PVC and fabricate a large number of consumer and industrial products containing vinyl chloride. J.A. 540. The size and economic importance of the industry are indicated by the fact that domestic productive capacity for PVC alone was 5.4 billion pounds in 1974. J.A. 3469, The OSHA standard at issue relates solely to expo- sure levels for VCM, since PVC in itself is not alleged to cause a health problem. | VCM is a gas at normal room temperature and pres- sure. It has long been known to pose risks of fire, explo- sion and toxicity at very high concentrations. Accord- ingly, in 1971 OSHA promulgated a standard limiting employee exposure to VOM to 500 parts per one million parts of air (expressed as 500 ppm).’ In January 1974, The B. F. Goodrich Company re- ported to the National Institute of Occupational Safety and Health (‘“‘NIOSH’’) that four of its long-term employees had died of a rare form of liver cancer known as angiosarcoma.? NIOSH relayed this infor- 1 References to the Court below. * 39 C.F.R. § 1910.93(a), Table G-1 (1972), *Sinee the initiation of lar World W ““J.A. ——”’ are to the Joint Appendix filed in ge-scale PVC production during ar II, the record shows that there have been 13 cases of BE Me a SERRA +e Mir: BTR I! bs ne re 7 mation to OSHA. On February 15, 1974, OSHA held a hearing on the possible hazards of VOM. On April 15, 1974, it promulgated an emergency temporary standard providing that employers must reduce exposures to 50 ppm. 39 Fed. Reg. 12342. On May 10, 1974, OSHA proposed a new permanent standard to reduce VCM exposure to ‘‘no detectable level.”? 39 Fed. Reg. 16896. Hearings on the proposal commenced June 25 and concluded on July 11. The Final Standard On October 1, 1974, the Secretary promulgated the new permanent standard, to be effective January 1, 1975. 39 Fed. Reg. 35890 ( October 4, 1974).* The maxi- mum permissible level was set at 1 ppm TWA over any eight-hour period, with a ceiling of 5 ppm for any period not exceeding 15 minutes.’ This criterion is es- sentially the same as the ‘‘no detectable level’’ standard suggested in the proposed regulations.” The standard requires employers immediately to reduce exposures of all employees to the 1 ppm level. 29 C.F.R. § 1910.93q (ec), Appendix B, p. 50a. It also provides that if angiosareoma among domestic PVC workers. J.A. 3258. All involve employees exposed to VCM during earlier periods of time when VCM concentrations in PVC plants were far higher than at present. J.A. 3258, 3289-91. 9 +The standard was amended in certain details on December 2, 1974, 39 Fed. Reg. 41848 (December 3, 1974). sTWA (‘‘time weighted average’’) is the sum of the exposure for any specified period of time divided by that time period. 6 The change in language reflects the fact that, with presently available monitoring technology, an exposure level of 1 ppm (+50%) is the lowest that can be detected. Because the two standards are essentially identical, the description in the text of the nature of the evidence presented at the hearing applies to the promulgated standard as well as to the proposed standard. ¢ 4 i i ; 4 a bo 2 3 4 5 tains SaKoeabe i hop ita ARAL ‘oi ee ee oe as 45 hee R SED GSE SERRE ETA A TO AIOE pee MIG MRE ot resect ‘ aA RA i ae ae 8 “feasible engineering and work practice controls which can be instituted immediately are not sufficient to reduce exposures . . . [to 1 ppm], they shall never- theless be used to reduce exposures to the lowest prac- ticable level, and shall be supplemented by respiratory protection. . .”” 29 C.F.R. § 1910.93q(f) (2), Appendix B, p. 52a. The Hearing 1. Medical testimony The factual data presented at the OSHA hearing did not prove a medical need for a standard in the range selected by the Secretary. On the contrary, a number of medical witnesses testified specifically that exposures at much higher levels have no adverse effect on human health. The Dow Chemical Company pre- sented the only record evidence relating health and mortality experience to specific levels of vinyl chloride exposure. The evidence showed no statistically signifi- cant deviation in medical experience for employees ex- posed to vinyl chloride even at levels as high as 200 ppm. J.A. 1185. Studies by other researchers showed that malignan- cies were lower than average for employees exposed to VCM levels below 200 ppm (J.A. 1744) ; that overall mortality among employees exposed to VCM was only 79% of the statistical expectation for the general population (J.A. 665-706); and that no cases of angiosarcoma were found in a group of more than 1,000 employees exposed to vinyl chloride for ap- proximately the same number of years as, but at lower exposures than, the population that produced the 13 eases of angiosarcoma—although, as a statistical matter, 21 cases should have resulted in the study group if vinyl chloride were actually a cause of angiosarcoma ae A PD da ya EN ee 9 at the tested levels (50 ppm and above). J.A. 663. These conclusions were confirmed by three additional studies of past and present employees. J.A. 1032, 1309, 2669. In the face of these substantial medical data, OSHA showed only that VCM is carcinogenic in man at very high levels of exposure—a proposition not contested by any party. J.A. 316. OSHA also produced clinical evi- dence, as did industry itself, that VCM is carcinogenic in rats and mice at 50 ppm. J.A. 175, 6044. No facts were presented proving that the carcinogenicity of VCM can be extrapolated from rats and mice to humans. Nor were there facts indicating whether VCM is carcinogenic in rats and mice at any level of ex- posure lower than 50 ppm. OSHA’s only “‘evidence’’ allegedly indicating a med- ical need for the Secretary’s standard was conclusory testimony that exposures should be reduced below the detectable level because no level of exposure has been shown to be safe. None of these witnesses (upon whom the Court below so heavily relied) produced any factual support for his view.’ On the contrary, the tenor of their testimony is reflected in the following examples. The only witness who based his recommendation on the extrapolation of 7 The record also contained the 1970 report by the Surgeon Gen- eral’s Ad-Hoe Committee on the Evaluation of Low Levels of Environmental Chemical Careinogens, which expresses the view that if a substance causes cancer in two or more animal species this finding may, by extrapolation, indicate a carcinogenic hazard to man at any exposure level. The authors of the report were not subject to cross-examination in the OSHA hearings. The report contains no reference to vinyl chloride. It thus supplies no factual data with respect to the question at issue in the hearing and it provides no factual basis for the Secretary's determination. 10 test results from rats and mice to man, conceded that his opinion depended upon a philosophical hypothesis postulating an invariable ‘continuity of nature.” J.A. 270. Every other witness rejected the validity of that extrapolation. J.A. 480, 496, 977, 1225, 1275, 1432, 2000, 2991, 3728, 164-168, 2001-2003, 615, 1224-N- 1224-0, 1323. One of these other witnesses told OSHA that “‘there is no way of projecting from the animal data to man.” J.A. 3729. This witness recommended the Secretary’s standard, yet he frankly admitted that projecting the known effect of exposure to viny] chlor- ide at high levels ‘‘is speculative at best... . [The data] give no grounds for extrapolating to the un- known. More fundamentally, there is no proven or theoretical reason for extrapolating the curve.” J.A. 3728-29. And he concluded that “a standard cannot be set on the basis of factual medical, toxicologic, epide- miologic, or pharmacologie data. Such data do not exist.’’ J.A. 3735. As this witness said, ‘‘The Record contains no reliable information with regard to the quantity of vinyl chloride that is hazardous to man.”’ J.A. 3727. 2. Technological infeasibility The record makes clear that the Secretary’s standard is not technologically feasible. The Secretary himself so concedes. 39 Fed. Reg. 35892-35894, Appendix B, pp. 32a-33a, 38a-39a. All of the factual evidence demon- strates that the engineering controls and work practices necessary to comply with the OSHA standard do not now exist, and that there is no reason to believe they can be developed in the foreseeable future. J.A. 560; 754-763 ; 938-948 ; 1096; 1319; 1329-1333 ; 1692-1693.* * Although several witnesses alleged the contrary, none possessed engineering or other relevant expertise and none supported his assertion with facts. 11 OSHA admitted at the hearing that it possessed no technological or engineering studies supporting the standard. J.A. 1366-1367. Presumably for this reason, the agency announced on the last day of the hearing that it had contracted with a private consulting firm, Foster D. Snell, Inc., to conduct a study of the techno- logical feasibility of the proposed standard and an analysis of its economic impact. OSHA included the Snell report in the record after the close of the hearing and refused to permit cross-examination as required by Section 1911.15(b) (2) of its own regulations.° Yet even this report confirms that the OSHA standard is not feasible and would threaten the continued existence of the entire industry. J.A. 3584-3589. 3. Economic infeasibility The record contains considerable evidence that the proposed standard is not economically feasible. The Snell report, cited above, concludes that if a 1 ppm standard were promulgated, the cost of attempted com- pliance would be so great that the entire PVC industry in the United States would be ‘“‘endangered.”’ J.A. 3566, 3587. The record contains no evidence that the standard is economically feasible. : The Secretary's Principal Findings and Conclusions The Secretary’s reasons for the final standard appear in his introduction to the regulations: lenged in, but not considered by, the Court below. The issue is encompassed within the questions presented in this petition. PE MT ee ee a ee a ye 4. 12 1. Medical considerations The Secretary recognizes that there is insufficient factual evidence that his standard is necessary to pro- tect employees’ health. 39 Fed. Reg. 35891-35892, Ap- pendix B, pp. 27a-33a. He nonetheless assumes that, since vinyl chloride induces cancer in man at very high exposure levels and in rats and mice at 50 ppm, no safe level exists. He asserts that, in order to set a specific exposure level, OSHA need not prove that the level is required to assure health and safety : \ “In our view, the demonstration of cancer indue- tion in humans at a particular level js nota pre- requisite to a determination that a substance rep- resents a cancer hazard at that level.’’ 39 Fed. Reg. 35892, Appendix B, pp. 3la-32a. 2. Infeasibility of compliance The Secretary also concedes that industry cannot comply with the 1 ppm standard when it becomes effective: “We agree that the PVC and VC establishments will not be able to attain a 1 ppm TWA level for all job classifications in the near future. We do believe, however, that they will, in time, be able to attain levels of 1 ppm TWA for most job classifica- tions most of the time.’’ 39 Fed. Reg. 35892, Appen- dix B, p. 33a. * * * ““We recognize that many employers covered by the standard can not currently achieve compliance with the permissible exposure limit solely by the use of feasible engineering and work practice con- trols.’’ 39 Fed. Reg. 35893, Appendix B, p. 38a. * * * “*... [W]Jeare presently unable to determine when it will be feasible for most establishments to reduce bas A PEIN ie crs ccs RE rae NNER ale CLO EAE AP 13 exposure levels to the permissible level.’’ 39 Fed. Reg. 358944, Appendix B, p. 39a. The Secretary acknowledges that the ‘‘record also re- flects broad generic distinctions between the compliance capabilities of the VC and PVC industries.”’ 39 Fed. Reg. 35893, Appendix B, p. 38a. He nonetheless makes no allowance for these differences, but applies the standard identically to both industries. The Secretary does not discuss the question of eco- nomic feasibility. 3. Purported justification for the standard In light of these concessions, the Secretary asserts that, where the record affords insufficient factual sup- port, he is nonetheless permitted to adopt regulations on the theory that they are justified as “‘policy judg- ments”’: ‘“Where decisions can be based on record evidence, this has been done. Where, however, factual cer- tainties are lacking or where the facts alone do not provide an_ answer, policy judgments have been made.”’ 39 Fed. Reg. 35892, Appendix B, p. 33a. On the basis of this rationale, the Secretary con- cludes: ‘‘ . the precise level of exposure which poses a hazard and the question of whether a ‘safe’ expo- sure level exists, cannot be definitely answered on the record. Nor is it clear to what extent exposures can be feasibly reduced. We cannot wait until in- disputable answers to these questions are available, because lives of employees are at stake. Therefore, we have had to exercise our best judgment on the basis of the best available evidence.’’ 39 Fed. Reg. 35892, Appendix B, p. 33a. 14 The Decision Below On October 1, 1974, Petitioners Union Carbide and Society of the Plastics Industry filed timely petitions for review of the Secretary’s action in the United States Court of Appeals for the Second Circuit.” After oral argument, the Court stayed the effectiveness of the regulations pending its decision on the merits. On Janu- ary 31, 1975, the Court entered its opinion denying the petitions. REASONS FOR GRANTING THE WRIT The decision below makes inoperative crucial provi- sions of the Occupational Safety and Health Act. It gives the Secretary virtually unrestrained license to promulgate standards that concededly do not comply with the statutory requirements, and to do so without meaningful judicial review. It thus presents important questions of Federal law which should be decided by this Court. Their significance is emphasized by the fact that, in numerous respects, the decision below conflicts with the decisions of other Circuits. The Occupational Safety and Health Act is a major Federal regulatory statute which has been in effect since 1970. It reaches every employer and worker en- gaged in interstate commerce. It directs OSHA to bal- ance what is optimal against what is practicable. OSHA’s role is to assure worker health and safety, but the Act requires the Secretary to temper his regulations with considerations of technological reality and eco- *° Petitioner Firestone filed a motion to intervene in the Second Cireuit on the same day. On October 7, 1974, it filed a Petition for Review in the Sixth Circuit. Firestone’s subsequent Motion to Transfer that Petition to the Second Cireuit was granted on No- vember 15, 1974. BTR LE VOLE LLCS Ly Jd i ee en is ee AB ed 15 nomic possibility. Hence the standards must be ‘‘ feasi- ble’? and must be based on ‘onbstantial evidence in the record considered as a whole.”’ In this instance, the Secretary has violated these statutory safeguards. With an admittedly inadequate evidentiary basis, he has directed employers to pursue standards which are admittedly infeasible. By allowing him to do so, the Court below has vitiated the process of judicial review specified by Congress. | These issues are central to the proper administration of the Act. Other Circuits have approached the issues differently and have reached contrary results. The in- consistencies produced by the decision below will con- tinue until this Court provides definitive guidance. To date, this Court has not reviewed the Act at all. The decision below demonstrates the need for the Court now to do so. The questions here presented are of great legal and practical importance. The Court should ra- tionalize the administration of the Act, by both the courts and the Secretary, by resolving the issues on their merits. 1. The Court Below Improperly Refused to Apply the “Substantial Evidence” Test Required by the Statute. 99 U.S.C. § 655(f) provides that, upon judicial re- view, “‘The determination of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.’’ * The Court below held 11 The legislative history of the statute demonstrates that Con- gress meant precisely what it said when it provided that the de- terminations of the Secretary must be ‘‘‘supported by substantial evidence in the record considered as a whole.”’ As Congressman Steiger of Wisconsin, chief sponsor of the statute in the House, said in discussing the bill as reported out of conference : PO IIE ETL LETTS We TNEL IIE Mh IR My, TIN ts ht Pe 16 ; “that, this test was “‘almast imanrcsible’’ te epprs —ewrck therefore did not apply it—because the Secretary’s de- termination was “essentially legislative” in character. Appendix A, p. 5a. Although the Court professed to ‘follow Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951), it did not do so. Instead, it chose a different and lesser test which it did not articulate, except to state that the courts will only inquire whether the Secretary has acted in a “‘manner calculated to negate the dangers _ of arbitrariness and irrationality.” Appendix A, p. 5a. The Court thus carved out of the statute a major ex- ception: the substantial evidence test is, not applicable whenever the agency’s standard under review is based on a “‘legislative’’ or ‘‘policy’’ determination. The ap- proach entails the obvious hazard that, as the Secretary finds less evidence to support the action he desires to take, he will increasingly assert that his decision is a matter of “‘policy’’ and hence immune to meaningful judicial review. Such a result is precisely contrary to the intent of Congress as expressed in clear statutory language. The decision of the Court below approaches an abdication of judicial responsibility. The case thus poses a critical question as to the role of the Courts in reviewing determinations under the Act. Its importance is confirmed by the instances in “The Secretary's standard will only be sustained by the court if it is supported by ‘substantial evidence in the record con- sidered as a whole.’. . ..[T]he court review based upon sub- stantial evidence provides a sufficient element of fairness to satisfy me that [the] conference report should be aecepted.’’ 116 Cong. Ree. 42206 (1970). Judge Friendly has explained in Associated Industries of New York State, Inc. v. Department of Labor, 487 F.2d 342 (2a Cir. 1973), that the substantial evidence test was incorporated in the statute as an explicit compromise between differing procedural provisions in the House and Senate bills. i i FOYT POOL AOL BELLI IRL ELLY BPE OSE EIGER II BY IRS RB ONL rus pire PUTA NOME ELA OL NST ENED SOG APPS OS. 17 | which the Circuit Courts have already confronted the question during the period that Tne dr ‘ac haan. in. effect. In four such cases, other decisions of the Cir- cuits directly conflict with the decision below. In Florida Peach Growers Association, Inc. V. United States Department of Labor, 489 F. 2d 120 (5th Cir, 1974), the Fifth Circuit explicitly rejected the argument that the question on review of an OSHA standard is whether it is arbitrary and capricious, rather than the more searching substantial e idence test. Even though the Fifth Cireuit concluded (as the Second Circuit did here) that OSHA’s task was **es- sentially legislative,”’ it eld that the substantial evi- dence test does apply. Moreover—as discussed in the next section of this Petition—the court reviewed and considered the opposing evidence, as the Court below declined to do. In both respects, the decisions directly conflict. Similarly, in Dry Color Manufacturers’ A ssociation, Inc. v. Department of Labor, 486 F. 2d 98 (3d Cir. 1973), the Third Circuit explicitly ruled that the sub- stantial evidence test is not limited to factual determi- nations, but applies to all decisions by OSHA.” The decision below also conflicts with the decision of the Seventh Cireuit in National Roofing Contractors Association v. Brennan, 495 F. 2d 1284 (7th Cir. 1974), cert. denied, 42 LL. Ed. 2d 801 (1975). Once again the 12°The view of the Third Circuit as to the proper standard of review is clouded by the fact that a different panel of that court subsequently held in related litigation that the substantial evidence test does not apply to any of the Secretary's determinations except as to factual matters, Synthetic Organic Chemical Manufacturers Association v. Brennan, 503 F.2d 1155 (3d Cir. 1974). The latter opinion is the subject of a petition for ceruorari now pending in this Court (No. 74-789, filed December 21, 1974). en ie hy ce. a ee 18 court held that the substantial evidence test applies to all of the Secretary’s regulatory determinations under OSHA and reviewed the evidence opposing the stand- ard as well as that supporting it. Finally, the opinion of the Court below is in conflict with another decision of the Second Circuit itself. In Associated Industries of New York State v. United States Department of Labor, 487 F. 2d 342 (2d Cir. 1973), the Second Circuit, per Friendly, J., explicitly rejected OSHA’s contention that the substantial evi- dence test does not apply to questions of policy. Having held that the substantial evidence test does apply, the Court examined all of the evidence and invalidated OSHA’s action.” The conflicts among the Circuits, the conflicts within the Third and Second Circuits, and the pendency of another petition for certiorari raising the identical issue as to the proper standard of review,” all attest to the importance of the question now presented to this Court. Petitioners also point out that, even if this Court were to conclude that the Fifth and Seventh Circuits— as well as the Second Circuit itself in Associated Indus- **In the usual case, a petition for rehearing en bane would be the appropriate mechanism for resolving such a conflict within a Cireuit. This case presents an unusual circumstance, however, which renders that remedy unavailable. No member of the panel which decided this case sits on the Second Circuit bench. The case was heard by a retired Justice of this Court, a retired District Judge, and an active District Judge. Petitioners are informed that this panel was selected because every member of the Second Cir- euit recused himself. In those circumstances, a petition for re- hearing en bane would be futile. Synthetic Organic Chemical Manufacturers Association v. Brennan, note 12, supra. 19 tries and the Third Cireuit in Dry Color Manufactur- ers—are in error, and that the Act permits the courts to create an exception to the substantial evidence test in the case of ‘‘policy”’ or ‘‘legislative’’ decisions, it would still be necessary to clarify the criteria for determining which decisions are which. The Secretary and the Court below evidently believe that every instance in which the factual record is insufficient gives rise to such a **nol- iey’’ judgment. Only this Court can provide the requi- site guidance. 2. The Court Below Improperly Failed Even to Consider the Exten- sive Evidence Contrary to the Secretary's Determination. The decision below also presents the separate ques- tion whether, irrespective of the proper standard for judical review, the courts may uphold the Secretary’s action without examining the contrary evidence in the record. Here the Court below did not consider or even mention the extensive evidence opposed to the standard. In effect, the Court held that, because human health is involved at high levels of exposure, OSHA may set any standard it pleases even where the factual basis for doing so is deficient or non-existent. The Court’s approach directly contravenes the man- date of Universal Camera Corp. V. N.L.R.B., supra. That decision requires a reviewing court to determine whether the evidence relied upon by the agency is ren- dered insubstantial by contrary evidence or evidence from which contrary inferences can be drawn. As Mr. Justice Frankfurter held: ‘*The substantiality of the evidence must take into account whatever in the record fairly detracts from its weight,’ 340 U.S. at 488. Al- though the Court below cites and professes to follow Universal Camera, it did not make the evidentiary in- quiry which that decision requires. 2 ea an ie Na ee aS a eT it BAR Aa te eg eke LURID 4 ae BBG | ; Zz P| . 3 3 20 Once again, conflicting decisions in other Circuits highlight the significance of the question. The cases cited in the preceding section of this petition, which hold that the substantial evidence test applies to OSHA standards, also recognize the courts’ obligation to weigh the evidence for and against the Secretary’s standard. Industrial Union Department, AFL-CTO v. Hodgson, 499 F. 2d 467 (D.C. Cir. 1974), is to the same effect. There the District of Columbia Circuit conducted a careful review of the evidence, including the evidence opposed to the standard set by the Secretary. The court thus recognized that, whatever standard of review ap- plies, it must examine all of the evidence rather than looking merely to that which tends to support OSHA’s action. The Court below did the opposite. The same conflict exists with Ethyl Corporation v. EPA (No. 73-2205, D.C. Cir., January 28, 1975), involv- ing EPA’s authority to regulate fuel additives under the Clean Air Act. EPA relied specifically on Indus- trial Union Department, AFL-CIO v. Hodgson, supra, to argue that where the issue lies ‘‘on the frontiers of scientific knowledge”’ the agency may act as a matter of policy even though the facts are deficient. EPA’s argu- ment in Ethyl was thus identical to the view of the Court below. Yet the District of Columbia Circuit re- jected EPA’s approach. The court held that the ““causal connection between the lead emissions and the harm must be established by relevant scientific and medical evidence.”’ (Slip Opinion, p. 12, emphasis in original.) It weighed the evidence on both sides and invalidated the agency’s action. The decisions cannot be reconciled. FE Ee NS CPEB DEI OL NDAD LAE OE ELLIE APS 0a? oP aa | ae a 21 3. The Court Below Improperly Interpreted the Statutory Require- ment that the Secretary's Standard Must be “Feasible.” 29 U.S.C. § 655(b) (5) contains two provisions re- quiring that the standards promulgated by the Secre- tary must be ‘‘feasible’’: “The Secretary .. - shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health _.? Appendix ©, p. 70a (emphasis supplied) ‘‘In addition to the attainment of the highest de- gree of health and safety protection, other consid- erations [in promulgating regulatory standards] shall be the latest available scientific data in the field, the feasibility of the standards, and experi- ence gained under ¢1,is and other health and safety laws.”? Id. (emphasis supplied) The legislative history confirms that Congress in- tended the Secretary’s standards to be feasible.” Despite the clear statutory directive, the Secretary candidly acknowledges that his VCM standard is not feasible. 39 Fed. Reg. 35892-35894, Appendix B, pp. 32a-33a, 38a-39a. Important questions are raised by his admission : 15 As explained by Senator Javits, the author of the amendment from which these statutory provisions were derived : ‘“As a result of this amendment, the Secretary, in setting standards, is expressly required to consider feasibility of pro- posed standards. This is an improvement over the Daniels bill, which might be interpreted to require absolute health and safety in all cases, regardless of feasibility, and the Admin- istration bill, whieh contains no criteria for standards at all.”’ §. Rep. No. 91-1282, 91st Cong., 2d Sess., at 58 (1970). is: } .. CE PAT eee hint * nthe Yl ditug batt Be. fume Hc 2 mind SORTA DSIRE RO BAB . Sob cal WANN REM ca Hakd Net 8) RDG nine CB he nerd! (a, ies Pt ota SPE ORE Wide © h' a : z Hy 4 4 22 (a) Technology-forcing The Court below upheld the Secretary’s standard, despite its admitted infeasibility, by holding that the Secretary may adopt standards “which require im- provements in existing technologies or which require the development of new technology”’ and by assuming (without evidence) that the necessary technology would eventually be developed. Appendix A, pp. 16a-17a. This holding presents a series of questions. Is such a ‘‘tech- nology-forcing’’ approach valid in the face of the statu- tory language which seems explicitly to require the con- trary result? Can the feasibility requirement be satis- fied simply by assuming that the standard will become feasible at an unspecified future time? Even if OSHA can act on the assumption that the technology will even- tually become available, when its advent is not foresee- able, does not the statutory requirement of feasibility at least require deferring the effective date of the regu- lations until the technology can reasonably be expected to have been developed ?* *° The Court below relied on its belief that employees can use respirators until compliance becomes possible. The Court over- looked the fact that the respirator provisions do not relieve em- ployers of the continuing obligation to achieve the 1 ppm standard. In addition, the Court was factually incorrect, While it acknow]- edged that the self-contained and airhose respirators are ‘‘infeasi- ble for full-time use, as well as potentially hazardous,’’ it assumed that the use of other types of respirators is feasible. In doing so, it ignored the evidence demonstrating that full-time use of any respirator is infeasible in the VCM and PVC industries. It also erroneously concluded that full-time use would not be required. The record shows, however, that full-time use of respirators would be required for most jobs, including those in offices and cafeterias, as well as for workers using washrooms, if a 1 ppm standard were imposed. J.A. 535-E; 564-566 ; 722-722-B; 724; 745; 1332; 1948. 2288-2289. 23 To support its technology-foreing approach, the Court below relied on Chrysler Corporation v. Depart- ment of Transportation, 472 F, 2d 659, 671-672 (6th Cir: 1972), and Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390, 411-412 (5th Cir. 1974), cert. granted sub nom. Train v. Natural Resources Defense Council, Inc., 42 L. Ed. 2d 46 (1974) (No. 73-1742). Neither decision is apposite. The statutes involved in* those cases (the Automobile Safety Act, 15 U.S.C. § 1381 et seq., and the Clean Air Act, 42 U.S.C. § 1857 * et seq.) both contain technology-forcing purposes which are absent here. The legislative histories make this clear. In adopting the Clean Air Act and the Auto- mobile Safety Act Congress expressly rejected ‘*feasi- bility’? provisions virtually identical to that contained in 29 U.S.C. § 655(b) (5). See Chrysler Corporation V. Department of Transportation, supra; Natural Re- sources Defense Council, Ine. V. EPA, supra; Port- land Cement Association V. Ruckelshaus, 486 F. 2d 375, 391 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974). See also, comments of Senator Muskie, Senate sponsor of the Clean Air Act Amendments, 116 Cong. Ree. 32901-2 (1970). The Court’s reliance on these deci- sions is therefore misplaced. In addition, the holding of the Court below, permit- ting the Secretary to impose a standard that requires the use of unavailable technology, conflicts with a recent holding on this point by the District of Colum- bia Civeuit: 17 Such comments contrast sharply with comments by Senators Javits, note 15, supra, and Saxbe, 116 Cong. Ree. 36512 (1970), regarding the feasibility requirement of 29 U.S.C. § 655(b) (5). 2Att> 24 “*Congress does not appear to have intended to pro- tect employees by putting their employers out of business—either by requiring protective devices unavailable under existing technology or by mak- ing financial viability generally impossible.”’ Industrial Union Department, AFL-CIO vy. Hodgson, supra, at 478 (emphasis supplied). (b) Differing compliance capabilities of the VCM and PVC industries The Secretary's standard applies identically to fab- ricators of vinyl chloride products, manufacturers of vinyl chloride and manufacturers who convert the vinyl chloride monomer into polyvinyl chloride. Yet the ree- ord demonstrates that, because of differences in the manufacturing processes involved, it is far more diffi- cult for PVC producers to limit VCM exposure than it is for VCM producers to do so. The Secretary hiin- self concedes that the record “reflects broad generic distinctions between the compliance capabilities of the VC and PVC industries.”’ 39 Fed. Reg. 35893, Appen- dix B, p. 38a. Petitioners believe, and argued below, that the Sec- retary acted improperly by failing to adjust his com- pliance standards to accommodate these acknowledged differences. The Court below did not consider the point. Yet such an indiscriminate approach, sanctioned by the Court, appears to be a further violation of the statu- tory requirement that the standard must be feasible, and also to raise a significant Constitutional question. Once again, the position of the Court below conflicts with Industrial Union Department, AFL-CIO vy. Hodgson, supra. There, as here, the record revealed that some industries could implement the Secretary’s standard more readily than others. Nevertheless, OSHA issued a single standard to be effective for all industries on the same date. For this deficiency the District of Columbia Circuit remanded. (c) Economic feasibility The record contains ample evidence that compliance with the Secretary’s standard would be economically impossible. It contains no evidence that the standard is economically feasible. Neither OSHA nor the Court below examined the question. Yet, as its legislative history makes clear, the statutory requirement that the Secretary’s standard be feasible includes economic feasibility."* The District of Columbia Circuit has spe- cifically so held in Industrial Union Department, AFL- CIO v. Hodgson, supra, at 477-478. Hence the decision below presents the question whether the Federal courts may permit the Secretary to ignore this statutory con- sideration also. Once again a conflict between the Cir- cuits emphasizes the significance of the question. 4. The Court Below Improperly Allowed the Secretary to Adopt a Standard Which, Because It Merely Repeats the Statutory Criterion of “Feasibility.” Violates the Legislative Requirement That the Standard Must Be Stated in Objective Terms, and Is Also Unconstitutionally Vague. Recognizing that achievement of the one ppm level is not feasible, the Secretary also requires industry to employ ‘‘feasible”’ engineering methods and work prac- tices to reduce exposure to the lowest “practicable” 18 See, e.g., remarks of Senator Saxhe, note 17, supra. 26 level, 29 C.F.R. § 1910.93q(f) (2), Appendix B, p. 02a.” This standard, of course, merely restates the statutory requirement of “*feasibility.”’ It contains no guidance, either for industry or for the OSHA regu- lators themselves, as to what is ‘feasible’ or ‘‘prac- ticable.’’ In fact, OSHA’s own explanation of its regu- lations makes clear that it drafted the standard as it did precisely because it could not determine, even after a full hearing, what level of exposure is feasible. In these circumstances, Petitioners argued in the Court below that the standard is impermissibly vague under the Fifth Amendment to the Constitution an. that it also violates the statutory requirement that “‘wherever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired,’ 29 U.S.C. § 655(b) (5). As in the case of various others of Petitioners’ arguments, the Court below did not discuss the point. Petitioners submit that the issue is important and should be addressed by this Court. The Secretary’s standard is clearly contrary to the statutory language and purpose. The decision of the Court below uphold- ing the standard conflicts, furthermore, with two recent decisions in other Circuits, both of which invalidated agency action for failure to formulate regulations in objective and ascertainable terms, Chrysler Corpora- tion v. Department of Transportation, supra, at 678, * As noted above, the Secretary’s regulations nonetheless retain the one ppm standard as an unconditional objective. The provi- sions relating to “‘feasibility’’ supplement, but do not alter, the obligation to pursue this objective. Industry remains obligated to work toward an admittedly infeasible goal. The same is true of the respirator provisions of the regulations, which do not affect the employers’ obligation to strive to limit exposures to one ppm. es 27 sha Portland Cement Association V. Ruckelshaus, supra, at 400-401.” CONCLUSION The decision below raises important questions of Federal law, relating to the implementation of a major Federal regulatory program and the standards which should govern agency decision-making. The statute in- volved has already generated considerable litigation and conflicting decisions by the Courts of Appeals. These are matters which have not yet been before this Court, and av to which the Court should now provide guidance. 20'The Secretary’s standard also violates the Constitutional re- quirement, which this Court has clearly articulated, that Federal administrative prescriptions may not be vague—particularly where, as here, a failure to comply can invoke criminal sanctions. As this Court has stated : «an order’s prohibitions ‘should be clear and precise in order that they may be understood by those against whom they are directed,’ ... and... ‘t]he severity of possible penalties prescribed . . . for violations of orders which have become final underlines the necessity for fashioning orders which kre, at the outset, sufficiently clear and precise to avoid raising serious questions as to their meaning and application.’ ”’ Federal Trade Commission v. Colgate-Palmolive Co., 380 U.S. 374, 392 (1965) (footnotes omitted). See also, M. Kraus «& Bros. v. United States, 327 U.S. 614, 621 (1946) ; Connally v. General Con- struction Co\, 269 U.S. 385 (1925) ; and United States v. Mersky. 361 U.S. 431 (1960). In the last case this Court emphasized that ‘businessmen must not be left to guess the meaning of regulations.”’ Id. at 441. Moreover, as Mr. Justice Clark himself recognized when he was sitting on this Court, the same principle applies even when erim- inal sanctions are not involved: ‘‘. . . this Court has held the ‘void for vagueness’ doctrine applicable to civil as well as criminal ac- tions.’’ Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 123 (1967). \ Pes ~t2z% ~ CLL AOA AIAN eA are | 08 Dt eres renee « . A FBR, lla vailing 500 ppm one. At the hearing, industry itself showed concern, and evidence was presented that both - VCM and PVC plants could reduce concentrations below 50 ppm TWA. As in the past, Dow Chemical spoke out for worker safety and urged that judustry exposure be re- duced to 50 ppm TWA by operational and engineering changes and that appropriate respiratory protection be given where such level was not attainable. The Assistant Secretary concluded that the evidence demonstrated VCM to be carcinogenic for man. See 39 Fed. Reg. 12342. Mon- itoring and housekeeping requirements were also imposed, and a requirement was included that, if the 50 ppm level was breached, appropriate respirators equipment be furnished workers. The emergency order was limited to six months ‘‘during which time the whole question of possible exposure of humans to VC would be reconsidered more fully and in the light of more information, including experiments which are underway at the time.”’ On April 9, 1974, the Industrial Bio-Test Laboratory notified MCA that its preliminary findings in their animal exposure study showed that angiosarcoma of the liver was produced in mice at a level of 50 ppm of vinyl chloride, and MCA so informed the federal government. On May 10, 1974, the Assistant Secretary again acted. Issuing a notice of proposed permanent rulemaking, he drew attention to the MCA study results and noted that: ‘‘the question of a cafe level of exposure for humans cannot be determined at this time, and may continue as a matter for scientific deliberation for many years.’’ 39 Fed, Reg. 16986. In the interim. he concluded, it was necessary to abandon the 50 ppm emergency temporary standard and to establish it at as low a level as can be detected using methodologies sensitive to 1 ppm plus-or-minus 50%, i.e., the so-called ‘‘no-detectable”? level. This level was to be reached through the ‘‘institution of engineering controls and work practices as soon as feasible,’’ but respiratory protection 12a was ds he affnrded wchare the smal ould .nnt atherwise Jhe achieved. On May 24, 1974, notice of a hearing on the proposed standard to be held before an Administrative Law Judge was given. Eight days of hearings were held during June and July of 1974, and additional materials were received from interested parties until September 25th. In addition, the record of the previous hearing on February 25, 1974, was ordered to be included. On October 1, 1974, the final standard was promulgated, effective January 1, 1975.? See 39 Fed. Reg. 35890. The ' main provisions are as follows: (1) The standard applies to manufacturers of VCM and. PVC and to fabricators of PVC, but excludes those merely handling or using already-fabricated products. 29 C.F.R. § 1910.93q(a) (2). (2) In place of the potentially obscure ‘‘no detectable level’’ standard, a permissible exposure limit not greater than 1 ppm averaged over an eight-hour period is set, but allows for peaks of VCM exposure up to 5 ppm during periods not exceeding 15 minutes. 29 C.F.R. § 1910.93q(c). (3) All employers are required to conduct an initial program of monitoring and measurement of exposure levels, but need not: continue monitoring if initial levels are below the so-called ‘‘action level’’ of 0.5 ppm averaged over the eight-hour work day. 29 C.F.R. § 1910.93q(d). (4) The standard requires that ‘‘feasible engineering and work practice controls’’ be employed to reduce ex- posure below the permissible exposure wherever possible, or to the lowest practicable level if not possible, supple- mented by respiratory protection. 29 C.F.R. § 1910.93q (f) (2). 2 Petitioners’ application for stay of the January Ist deadline was granted pending our disposition of the matter. a A ee eh oe ae en ee ee Ee i —s a - ~ ge 13a (5) Where respiratory protection is required under the standard, suitable equipment, as inaikatéa vyvar chert.in the standard, shall be provided, and use shall be required of employees unless the VCM level is below 25 ppm measured over any 15 minute period, in which case the use of respiratory equipment is optional with the employee until January 1, 1976. 29 C.F.R. § 1910.93q(g) (1). (6) Employees working in certain hazardous operations, especially those involved in physically cleaning the interiors of PVC manufacturing reactors, shall be provided pro- tective garments and respiratory equipment. 29 C.F-R. § 1910.93q(h). (7) A medical surveillance program is required for all employees exposed to VCM in excess of the action level of 0.5 ppm. 29 C.F.R. § 1910.93q(k). (8) Finally, in addition to certain record-keeping re- uirements, all entrances, work-areas, and containers re- lated to VCM or PVC manufacture and PVC fabrication are required to be labelled with the warning legend : ‘‘Cancer-Suspect Agent’’. 29 C.F.R. § 1910.93q(1). IV. Peritioxers’ CONTENTIONS (a) Petitioner’s initial claim is that the available scientific and medical evidence does not establish that the 1 ppm exposure level adopted by the Secretary is required by health or safety considerations. They claim that no proof exists in the record to justify such a low standard, since all of the medical witnesses testified that no one can say whether exposure to VCM at low levels was safe or unsafe. Further, they point to studies of employee health by Dow ‘ Chemical over a number of years which concluded that exposure to VCM below 200 ppm did not lead to any adverse effect. PF Br eT Py, ~. eI het CO IIOR ES IIE TE HE A —————— cea ts SOC PIES. = Ato l4a We find, however, that the evidence is quite sufficient to warrant the Secretary’s choice. First, it must be re- membered that we are dealing here with human lives, and the record reveals that 11 manufacturing plant workers and two fabrication plant workers have already died from the effects of this potent chemical. Moreover, the animal exposure study, sponsored by MCA, the industry’s own trade association, identified fatal liver angiosarcoma and 4 other kidney and liver diseases at the 50 ppm level. None of the physicians or scientists who testified could identify a safe level of exposure to VCM, nor the precise mechanism F by which it produces cancer; yet expert after expert rec- ommended that this ‘‘very virulent’* carcinogen be re- stricted to the lowest detectable level. Indeed, as one witness, Dr. Kraybill of the National Cancer Institute, : testified : Certainly, there is little margin for safety if a response can be expected at a level below 50 parts per million which in truth is now only a fifty-fold safety factor in terms of the proposed standard. According to toxicological principles, were this compound a non- carcinogen, then to establish a tolerance or safe level, there would have to be a 100 to 1 margin of safety in terms of a no-effect level, and from the experimental data on the animals we don’t even know what the no-effect level is. Obviously, this would put the allowable level at a small fraction of a given standard —of the given standard. As in Industrial Union Department, AFL-CIO v. Hodgson, supra, the ultimate facts here in dispute are ‘ton the frontiers of scientifie knowledge’’, and, though the factual finger points, it does not conclude. Under the command of OSHA, it remains the duty of the Secretary to act to protect the workingman, and to act even in cir- cumstances where existing methodology or research is deficient. The Secretary, in extrapolating the MCA study’s finding from mouse to man, has chosen to reduce SITEL 4 DOOR TES ARTE ES PIPL NG eS SORES GE A ORE TOMEI RAE OVER HAREM IL ERAGE RIO NERDS PPO L971 ol ERB, Leaf LAN Bd RII NY EPP TTDI MINN OIA ERIS HE te —— OF PO AT ELE LEG DH RPTL? 15a the permissible level to the lowest detectable one. We find no error in this respect. Failing in this contention, petitioners strongly urge that the Secretary breached his statutory mandate to insure that the standard selected is a ‘‘feasible’”’ one.* Relying on the so-called Snell Report, * petitioners claim that VCM and PVC manufacturers will never be able to reduce levels of exposure to 1 ppm through engineering means. They point to the conclusion reached by the Snell Report that: The costs of compliance increase rapidly with de- creasing VCM target levels and represent significant engineering uncertainty or infeasibility beyond 10 ppm ceiling and 2-5 ppm TWA for the VCM industry and 15-25 ppm ceiling and 10-15 ppm TWA for the PVC industry. According to the report, “ [blased on the industry surveys and Snell’s independent assessments of the state-of-the-art of the technology,’’ the standard price of VCM would only rise from 7.41¢ /lb. at present to 7.69¢/Ib. at a target level of 2-5 ppm TWA, but would supposedly soar to 12.71¢/lb. at the ‘‘no detectable”’ level. In his statement of reasons in support of the standard, the Assistant Secretary acknowledged the industry con- tention and the Snell conclusion about the infeasibility of 399 U.S.C. § 655(b) (5) provides in part: The Secretary * * * shall set the standard which most ade- quately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material im- pairment of health or functional capacity * * *. 4 This report, ‘‘ Economie Impact Studies of the Effects of Pro- posed OSHA Standards for Vinyl Chloride,’ was prepared in September of 1974 by Foster D. Snell, Ine., an independent con- sultant, at the request of the Secretary of Labor and estimates the cost to the industry of complying with various exposure levels between 50 ppm and 0-1 ppm. Plant and industry visits were the principal means of information gathering. l6a the 1 ppm level, but noted that: ‘Labor union spokesmen and the Health Research Group, Inc., however, have sug- gested that such a level is attainable.’’ The Assistant Secretary went on to say: Since there is no actual evidence that any of the VC or PVC manufacturers have already attained a 1 ppm level or in fact instituted all available engineering and work practice controls, any estimate as to the lowest feasible level attainable must necessarily in- volve subjective judgment. Likewise, the projections of industry, labor, and others concerning feasibility are essentially conjectural. Indeed, as Firestone has suggested, it is not possible to accurately predict the degree of improvement to be obtained from engineer- ing changes until such changes are actually imple- mented. We agree that the PVC and VC establishments will not be able to attain a 1 ppm TWA level for all job classifications in the near future. We do believe, how- ever, that they will, in time, be able to attain levels of 1 ppm TWA for most job classifications most of the time. It is apparent that reaching such levels may require some new technology and work practices. It may also be necessary to utilize technology presently used in other industries. In any event the VC and PVC industries have already made great strides in redncing exposure levels. (See testimony of Dow Chemical Co., TR 973). For example, B. F. Goodrich testified (TR 1120) that it has reduce [sic] average exposure levels in several PVC plants from 35-40 ppm early this year to 12-13 ppm at the time of the hearing. We are confident that industry will continue to do so. [39 Fed. Reg. at 35892.] We cannot agree with petitioners that the standard is so clearly impossible of attainment. It appears that they simply need more faith in their own technological poten- tialities, since the record reveals that, despite similar pre- dictions of impossibility regarding the emergency 50 ppm standard, vast improvements were made in a matter of weeks, and a variety of useful engineering and work prac- tice controls have yet to be instituted. In the area of aT eT ‘ 17a safety, we wish to emphasize, the Secretary is not restricted by the status quo. He may raise standards which require improvements in existing technologies or which require the development of new technology, and he is not limited to issuing standards based solely on devices already fully developed. Cf. Chrysler Corp. v. Dept. of Transportaticn, 472 F.2d 659, 673 (6th Cir. 1972) ; Natural Resources De- fense Council, Inc. v. E.P.A., 489 F.2d 390, 401 (5th Cir. 1971) [sic]. There is much testimony in the record, especially in the Snell Report, indicating that VCM concentration can be easily pinpointed and largely corrected. For example, many of the companies engaged in PVC manufacture still perform the cleaning of batch reactors by opening the vessel and having the worker physically enter it. In chipping off the aceretion from the walls of the vessel, the worker is thus exposed to a high concentration of VCM. Yet other, less hazardous methods are currently available and in use, in which the vessels are cleaned by machinery, emulsions or simply water under high pres- sure. Other sources of exposure are encountered in filling tank cars, measuring, testing and repairing pipe joints or other connections. The Snell Report indicates that much of this may be alleviated. But whether it can or not, the Secretary’s compliance scheme does not rest only on engineering and work prac- tice controls. He does mandate that the industry use such technology to the extent feasible, but, more importantly, he requires that, in addition, respiratory protection be used if engineering means cannot bring the VCM level down to the permissible limit. To be sure, respirators have their drawbacks. These problems were detailed at the hearings and recognized by the Assistant Secretary. Self-contained and air-hose type breathing equipment is bulky, expensive, and infeasible for full-time use, as well as potentially hazardous in terms of tripping, restricted mobility, and over-exhaustion of work- ; aon 18a ers. But the fact remains that they effectively eliminate exposure to VCM, and they are already being used by some PVC companies in the cleaning process and at other points in production with good success. Like the industry’s claims about the impossibility of achieving compliance through technological means, peti- tioners’ claims of dire consequences from the requirement of respiratory protection are exaggerated. It does not appear that full-time use of respirators is necessary, and the Snell Report points this out. Furthermore, lightweight, inexpensive cartridge or cannister-type respirators, which can effectively filter out VCM at low levels, are now avail- able and acceptable. Contrary to petitioners’ assertions, the Snell Report indicates that a variety of respirators are reasonably available. c. We find that the Seeretary’s directions are clear, definite, and certain and that they are also entirely feasible, since the goal of the lowest detectable level can definitely be attained through the combination of technological means and respi- rators. Our conclusion in this regard is buttressed by the fact that only some 6,500 of the workers coming under the standard—those in the VCM and PVC manufacturing field —are potentially exposed to high or constant VCM concen- trations, and only a small percentage of them are actually subject to excessive concentrations of the chemical during manufacture. The remaining hundreds of thousands of workers are in the fabrication field where exposure is already so low that some of the petitioners claim that the fabricators should not even be under the standard; these, of course, have been included because of their work with PVC resin which in final form contains residual amounts of VOM, and the record shows that two deaths have in fact occurred among fabricators. If, in the future, the monitoring under the standard indi- cates that the VCM level among fabricators is sufficiently POR ae PL AN II IIE GN” APG L 2 OW, ' 19a low and that the sporadic, unpredictable exposure of these workers to residual VCM has been controlled, the fabrica- tors might well be excluded or included in a separate, less rigorous standard. Certainly if PVC producers were able to eliminate all residual VCM from the resin before it is delivered to the fabricator, there would seem to be no rea- son for their inclusion. But this would be for the Secretary | to decide on appropriate application or on his own motion, l 4 and, as the record presently stands, their inclusion is amply justified. ee 1 | In any event, compliance is time-phased and, if the peti- tioners find that they cannot comply for reasons beyond . their control, OSHA permits the amendment of standards. See 29 U.S.C. § 655(b)(6)(A). Upon application and suffici- ent proof of such a situation, we feel certain that the peti- tioners would obtain relief at the hands of the Secretary. This is especially true of the ‘‘cancer suspect agent’’ label- ling requirements which petitioners urge are beyond statu- tory contemplation. We think that the Secretary is simply ‘‘fighting fire with fire’’ and using the labels to bring the danger of vinyl chloride forcibly to the attention of the workers. Cf. Synthetic Organic Chemical Mfrs. Assn. v. Brennan, 503 ¥.2d 1155 (3d Cir. 1974). They deserve no less treatment. We have also considered the other argu- ments of the petitioners and find them untenable. Vs It is our conclusion that the challenged aspects of the Secretary’s vinyl chloride standard are supported by sub- stantial evidence in the record and that the petitions for review must be denied. Taking into account the delay occasioned by these petitions, we think that a reasonable ‘‘lead time’’ is appropriate and therefore order that the Secretary’s regulations, rather than being effective Jan- uary 1, 1975, shall become effective sixty days after the date of this order and that the time requirement as to respira- tory protection contained in 29 C.F.R. § 1910.93q(g)(1) is re-scheduled accordingly. 1 if ay yn 5 acid ; FI AAI OLLI LAE LEE ES EPL IONE, ELL LIA LIE LL By TELE ABER I ES BOO YOIANESIE DS AGG oe * le a a a ae Rd a i en ee ee Ae ee Die ee “0 53a (1) The employer shal! provide a respirator which meets the requirements of this paragraph and shall assure that the employee uses such respirator, except that until De- cember 31, 1975, wearing of respirators shall be at the discretion of each employee for exposures not in excess of 25 ppm, measured over any 15-minute period. Until December 31, 1975, each employee who chooses not to wear an appropriate respirator shall be informed at least quar- terly of the hazards of vinyl chloride and the purpose, proper use, and limitations of respiratory devices. (2) Respirators shall be selected from among those jointly approved by the Mining Enforcement and Safety Administration, Department of the Interior, and the National Institute for Occupational Safety and Health under the provisions of 30 CFR Part 11. (3) A respiratory pxotection program meeting the re- quirements of § 1910.134 shall be established and main- tained. (4) Selection of respirators for vinyl chloride shall be as follows: Atmospheric concentration of vinyl chloride Required apparatus (i) Unknown, or above 3,600 ppm ..Open-cireuit, self-contained breathing ap- paratus, pressure demand type, with full facepiece. (ii) Not over 3,600 ppm ........--. (A) Combination type C supplied air res- pirator, pressure demand type, with full or half facepiece, and auxiliary self-contained air supply; or (B) Combination type C, supplied air res- pirator continuous flow type, with full or half facepiece, and auxiliary self-contained air supply. (iii) Not over 1,000 ppm ........---- Type C, supplied air respirator continuous flow type, with full or half facepicee, helmet or hood. (iv) Not over 100 ppm ...........++-- (A) Combination type C supplied air res- pirator demand type, with full face- piece, and auxiliary self-contained air supply; or >... A Ae 1 REGS EW! BPW ROLLEPIES ELELE LE | BLS ROG OLR AGT LONE TY AA OR Ot 2 At pheric concentration vi vinyl chloride ” Required apparatus (B) Open-eireuit self-contained — apparat us with full facepiece; in demand mode; or (C) T C supplied air respirator, de- Tuand type, with full haga (v) Not over 25 ppm .............. (A) A power air-pu yore veipeoe de nant, "fall hh, ff ; ids atediies a ane life of at seat 4 hours for eoneentrations of vinyl chloride up to 25 ppm, or (B) Gas mask, front- or back-mounted eanister which des a service life of at least 4 rs for concentra; tions of vinyl chioride up to 25 ppm. (vi) Not over 10 ppm ..........+-.- (A) Combination tess Cc Fos igre res- pirator, deman type, with half facepiece, oe auxiliary self-con- tained air supply; or (B) Type C supplied-air respirator, de- and type, Pith half facepiece; or (C) Any chemical cartridge respirator with an organic vapor cartridge which provides a service life of at least 1 hour for concentrations of vinyl chloride up to 10 ppm. (5)(i) Entry into unknown concentrations or concentra- tions greater than 36,000 ppm (lower explosive limit) may be made only for purposes of life rescue; and (ii) Entry into concentrations of less than 36,000 ppm, but greater than 3,600 ppm may be made only for purposes of life rescue, firefighting, or securing equipment so as to prevent a greater hazard from release of vinyl chloride. (6) Where air-purifying respirators are used: (i) Air-purifying cannisters or cartridges shall be re- placed prior to the expiration of their service life or the end of the shift in which they are first used, whichever occurs first, and (ii) A continuous monitoring and alarm system shall be provided where concentrations of vinyl chloride could rea- OEE RP a a at . SFE ERE ADD 6 PTO NEON DOM RI ENO OT EEL We Sell > a em me ON OT 0 OE pm = - 55a sonably exceed the allowable concentrations for the devices in use. Such system shall be used to alert employees when vinyl chloride concentrations exceed the allowable concen- trations for the devices in use. (7) Apparatus prescribed for higher concentrations may be used for any lower concentration. (h) Hazardous operations. (1) Employees engaged in hazardous operations, including entry of vessels to clean polyvinyl chloride residue from vessel walls, shall be pro- vided and required to wear and use; (i) Respiratory protection in accordance with para- graphs (c) and (g) of this section; and (ii) Protective garments to prevent skin contact with liquid vinyl chloride or with polyvinyl chloride residue from vessel walls. The protective garments shall be se- lected for the operation and its possible exposure condi- tions, (2) Protective garments shall be provided clean and dry for each use. (i) Emergency situations. A written operational plan for emergency situations shall be developed for each facil- ity storing, handling, or otherwise using vinyl chloride as a liquid or compressed gas. Appropriate portions of the plan shall be implemented in the event of an emergency. The plan shall specifically provide that: (1) Employees engaged in hazardous operations or cor- recting situations of existing hazardous releases shall be equipped as required in paragraph (h) of this section: (2) Other employees not so equipped shall evacuate the area and not return until conditions are controlled by the methods required in paragraph (f) of this section and the emergency is abated. a TUR ry one ieee - - -o . ee ee eee ee ee Te ee bo a Re Pee ee Se Sheil Weazie APRA. pie istties ie Sak ee aa at Rt kOe, Lanta Pe mein ee REMEBER RT ye ae DOT AE ELL RI + POE EMIT i EAE I NOREEN 56a (j) Training. Each employee engaged in vinyl chloride or polyvinyl chloride operations shall be provided training in a program relating to the hazards of vinyl chloride and precautions for its safe use. (1) The program shall include: (i) The nature of the health hazard from chronic ex- posure to vinyl chloride including specifically the carci- nogenic hazard; (ii) The specifie nature of operations which could result in exposure to vinyl chloride in excess of the permissible limit and necessary protective steps; (iii) The purpose for, proper use, and limitations of res- piratory protective devices; . (iv) The fire hazard and acute toxicity of vinyl chloride, and the necessary protective steps; (v) The purpose for and a description of the monitor- ing program; (vi) The purpose for, and a description of, the medical surveillance program; (vii) Emergency procedures ; (viii) Specific information to aid the employee in recog- nition of conditions which may result in the release of viny] chloride; and (ix) A review of this standard at the employee’s first training and indoctrination program, and annually there- after. (2) All materials relating to the program shall be pro- vided upon request to the Assistant Secretary and the Director. (k) Medical surveillance. A program of medicai surveil- lance shall be instituted for each employee exposed, with- PYAR RES le re a COD A OS AD bia NC NARRTIOb ERE ———— : -———-- — ats TPP ny » De y NRG es Ba ae LS 8 NTE ET YT EE NO LI IRE MRR EAS RIE REN AOA ROOTED HO 57a out regard to the use of respirators, to vinyl chloride in excess of the action level. The program shall provide each such employee with an opportunity for examinations and tests in accordance with this paragraph. All medical ex- aminations and procedures shall be performed by or under the supervision of a licensed physician, and shall be pro- vided without cost to the employee. (1) At the time of initial assignment, or upon institution of medical surveillance ; (1) A general physical examination shall be performed, with specific attention to detecting enlargement of liver, spleen or kidneys, or dysfunction in these organs, and for abnormalities in skin, connective tissues and the pulmonary system (See Appendix A). (ii) A medical history shall be taken, including the fol- lowing topics: (A) Alcohol intake; (B) Past history of hepatitis; (C) Work history and past exposure to potential hepa- totoxic agents, including drugs and chemicals; (D) Past history of blood transfusions; and (E) Past history of hospitalizations. (iii) A serum specimen shall be obtained and determina- tions made of : (A) Total bilirubin; (B) Alkaline phosphatase ; (C) Serum glutamic oxalacetic transaminase (SGOT); (D) Serum glutamic pyruvic transaminase (SGPT) ; and (E) Gamma glustamy] transpeptidase. = . DENN STE a PO Rane Ne st LETTE ALN RTE LE a 4 ; F ’ 58a : 3 - (2) Examinations provided in accordance with this para- graph shall be performed at least: (i) Every 6 months for each employee who has been em- ; ployed in vinyl chloride or polyvinyl chloride manufactur- : ing for 10 years or longer; and a. (ii) Annually for all other employees. (3) Each employee exposed to an emergency shall be : afforded appropriate medical surveillance. (4) A statement of each employee’s suitability for con- tinued exposure to vinyl chloride including use of protec- tive equipment and respirators, shall be obtained from the 4 examining physician promptly after any examination. A copy of the physician’s statement shall be provided each employee. 4 (5) If any employee’s health would be materially im- ; paired by continued exposure, such employee shall be with- : drawn from possible contact with vinyl chloride. : (6) Laboratory analyses for all biological specimens included in medical examinations shall be performed in laboratories licensed under 42 CFR Part 74. (7) If the examining physician determines that alterna- tive medical examinations to those required by paragraph (k)(1) of this section will provide at least equal assurance of detecting medical conditions pertinent to the exposure to vinyl chloride, the employer may accept such alternative examinations as meeting the requirements of paragraph (k)(1) of this section, if the employer obtains a statement from the examining physician setting forth the alternative examinations and the rationale for substitution. This statement shall be available upon request for examination and copying to authorized representatives of the Assistant Secretary and the Director. ERE RNR RR IS, RAS EMI ASE WH A FOS ALS SETS SNe I ORT TOI SB BS 59a = (1) Signs and labels, (1) Entrances to regulated areas shall be posted with legible signs bearing the legend: . Cancer-Suspect AGENT AREA . AUTHORIZED PERSONNEL ONLY (2) Areas containing hazardous operations or where an emergency currently exists shall be posted wir legible signs bearing the legend: N Cancer-Suspect AGENT IN THs AREA Protective EquiepMENT REQUIRED AUTHORIZED PERSONNEL ONLY (3) Containers of polyvinyl chloride resin waste from reactors or other waste contaminated with vinyl chloride shall be legibly labeled: CoNTAMINATED WITH Vinyt CHLORIDE Cancer-Suspect AGENT (4) Containers of polyvinyl chloride shall be legibly labeled: PotyvinyL CHLorive (or TrapeE Name) Contains - Vin y_ CHLORIDE Vinyt CHtoripe Is a Cancer-Susrect AGENT . (5) Containers of vinyl chloride shall be legibly labeled APPENDIX C The relevant Sections of The Occupational Safety and Health Act, 29 U.S.C. § 651, et seq. provide as follows: s * + * e * 7” * * * 63a § 651. Congressional statement of findings and declara- tion of purpose and policy. The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial bur- den upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments. The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources— (1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places ofgemploy- ment, and to stimulate employers and employees to in- stitute new and perfect existing programs for provid- ing safe and healthful working conditions; (2) by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions; (3) by authorizing the Secretary of Labor to set ) mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health f Review Commission for carrying out adjudicatory functions under this chapter; 64a (4) by building upon advances already made through employer and employee initiative for provid- ing safe and healthful working conditions; (5) by providing for research in the field of occu- pational safety and health, including the psychologi- cal factors involved, and by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems; (6) by exploring ways to discover latent diseases, establishing casual connections between diseases and work in environmental conditions, and conducting other research relating to health problems, in recognition of the fact that occupational health standards present problems often different from those involved in occu- pational safety; (7) by providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expect- ancy as a result-of his work experience; (8) by providing for training programs to increase the number and competence of personnel engaged in the field of occupational safety and health; (9) by providing for the development and promul- gation of occupational safety and heaith standards; (10) by providing an effective enforcement pro- gram which shall include a ‘prohibition against giving advance notice of any inspection and sanctions for any individual violating this prohibition; (11) by encouraging the States to assume the full- est responsibility for the administration and enforce- ment of their occupational safety and health laws by previding grants to the States to assist in identifying their needs and responsibilities in the area of occu- pational safety and health, to develop plans in ac- 5 AP PONE Ao tae met \ 4 # ; 65a cordance with the provisions of this chapter, to im- prove the administration and enforcement of State oc- cupational safety and health laws, and to conduct ex- perimental and demonstration projects in connection therewith; (12) by providing for appropriate reporting proce- dures with respect to occupational safety and health which procedures will help achieve the objectives of this chapter and accurately describe the nature of the occupational safety and health problem; (13) by encouraging joint labor-managemeni efforts to reduce injuries and disease arising out. of employ- ment. . § 652. Definitions. For the purposes of this chapter— (1) The term ‘‘Secretary”’ means the Secretary of Labor. (2) The term ‘‘Commission’’ means the Occupa- _ tional Safety and Health Review Commission estab- lished under this chapter. (3) The term ‘‘commerce’’ means trade, traffic, com- merce, transportation, or communication among the several States, or between a State and any place out- side thereof, or within the District of Columbia, or a possession of the United States (other than the Trust Territory of the Pacific Islands), or between points in the same State but through a point outside thereof. (4) The term ‘‘person’”’ means one or more individ- uals, partnerships, associations, corporations, business trusts, legal representatives, or any organized group of persons. 66a (5) The term ‘‘employer’’ means a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State. (6) The term ‘‘employee’’ means an employee of an employer who is employed in a business of his em- ployer which affects commerce. (7) The term ‘‘State’’ includes a State of the United States, the District of Columbia, Puerto Rico, the Vir- gin Islands, American Samoa, Guam, and the Trust Territory of the Pacific Islands. (8) The term ‘‘occupational safety and health standards’’ means a standard which requires condi- tions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment. . (9) The term ‘‘national consensus standard’’ means any occupational safety and health standard or modi- fication thereof which (1) has been adopted and prom- ulgated by a nationally recognized standards-produc- ing organization under procedures whereby it can be determined by the, Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Sec- retary, after consultation with other appropriate Fed- eral agencies. (10) The term ‘‘established Federal standard’’ means any operative occupational safety and health standard established’ by any agency of the United States and presently in effect, or contained in any Act of Congress in force on December 29, 1970. 67a (1)) The term ‘‘Committee’’ means the National Advisory Committee on Occupational Safety and Health established under this chapter. (12) The term ‘‘Director’’ means the Director of the National Institute for Occupational Safety and Health. (13) The term ‘‘Institute’’ means the National In- stitute for Occupational Safety and Health established under this chapter. (14) The term ‘‘Workmen’s Compensation Commis- sion’’ means the National Commission on State Work- ~en’s Compensation Laws established under this chap- ter. § 654. Duties of employers and employees. (a) Each employer— (1) shall furnish to each of his employees employ- ment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this chapter. (b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct. 68a § 655. Standards. (a) Promulgation by Secretary of national consensus standards and established Federal standards; time for promulgation; conflicting standards. Without regard to chapter 5 of Title 5 or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this chapter and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any estab- lished Federal standard, unless he determines that the promulgation of such a standard would not result in im- proved safety or health for specifically designated employ- ees. In the event of conflict among any such standards, the the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the af- fected employees. (b) Procedure for promulgation, modification, or revoca- tion of standards. The Secretary may by rule promulgate, modify, or re- voke any occupational safety or health standard in the fol- lowing manner: (1) Whenever the Secretary, upon the basis of informa- tion submitted to him in writing by an interested person, a representative of any organization of employers or em- ployees, a nationally recognized standards-producing or- ganization, the Secretary of Health, Education, and Wel- fare, the National Institute for Occupational Safety and Health, or a State or political subdivision, or on the basis of information developed by the Secretary or otherwise available to him, determines that a rule should be promul- gated in order to serve the objectives of this chapter, the Secretary may request the recommendations of an advis- ory committee appointed under section 656 of this title. The Secretary shall provide such an advisory committee 69a with any proposals of his own or of the Secretary of Health, Education, and Welfare, together with all pertinent factual information developed by the Secretary or the Secretary of Health, Education, and Welfare, or otherwise available, including the results of research, demonstration, and ex- periments. An advisory committee shall submit to the Sec- retary its recommendations regarding the rule to be pro- mulgated within ninety days from the date of its appoint- ment or within such longer or shorter period as may be prescribed by the Secretary, but in no event for a period which is longer than two hundred and seventy days. (2) The Secretary shall publish a proposed rule pro- mulgating, modifying, or revoking an occupational safety or health standard in the Federal Register and shall afford interested persons a period of thirty days after publication to submit written data or comments. Where an advisory committee is appointed and the Secretary determines that a rule should be issued, he shall publish the proposed rule within sixty days after the submission of the advisory committee’s recommendations or the expiration of the pe- riod prescribed by the Secretary for such submission. (3) On or before the last day of the period provided for the submission of written data or comments under para- graph (2), any interested person may file with the Secre- tary written objections to the proposed rule, stating the crounds therefore and requesting a public hearing on such objections. Within thirty days after the last day for filing such objections, the Secretary shall publish in the Federal Register a notice specifying the occupational safety or health standard to which objections have been filed and a hearing requested, and specifying a time and place for such hearing. (4) Within sixty days after the expiration of the period provided for the submission of written data or comments under paragraph (2), or within sixty days after the com- pletion of any hearing held under paragraph (3), the Sec- 70a retary shall issue a rule promulgating, modifying, or re- voking an occupational safety or health standard or make a determination that a rule should not be issued. Such a rule may contain a provision delaying its effective date for such period (not in excess of ninety days) as the Secretary determines may be necessary to insure that affected em- ployers and employees will be informed of the existence of the standard and of its terms and that employers affected are given an opportunity to familiarize themselves and their employees with the existence of the requirements of the standard. (5) The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Develop- ment of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the standard promulgated shail be expressed in terms of ob- jective criteria and of the performance desired. (6)(A) Any employer may apply to the Secretary for a temporary order granting a variance from a standard or any provision thereof promulgated under this section. Such temporary order shall be granted only if the employer files an application which meets the requirements of clause (B) and establishes that (i) he is unable to comply with a stand- ard by its effective date because of unavailability of professional or technical personnel or of materials and PRD HE RARE I TET EN TE MAE ee eee Tla equipment needed to come into compliance with the stand- ard or because necessary construction or alteration of facilities cannot be completed by the effective date, (ii) he is taking all available steps to safeguard his employees against the hazards covered by the standard, and (iii) he has an effective program for coming into compliance with the standard as quickly as practicable. Any temporary order issued under this paragraph shall prescribe the prac- tices, means, methods, operations, and processes which the employer must adopt and use while the order is in effect and state in detail his program for coming into compliance with the standard. Such a te’ :porary order may be granted only after notice to employees and an opportunity for a hearing: Provided, That the Secretary may issue one in- terim order to be effective until a decision is made on the basis of the hearing. No temporary order may be in effect for longer than the period needed by the employer to achieve compliance with the standard or one year, which- ever is shorter, except that such an order may be renewed not more than twice (I) so long as the requirements of this paragraph are met and (II) if an application for renewal is filed at least 90 days prior to the expiration date of the order. No interim renewal of any order may remain in effect for longer than 180 days. (B) An application for a temporary order under this paragraph (6) shall contain: (i) a specification of the standard or portion there- of from which the employer seeks a variance, (ii) a representation by the employer, supported by representations from qui lified persons having first- hand knowledge of the facts represented, that he is unable to comply with the standard or portion thereof and a detailed statement of the reasons therefor, (iii) a statement of the steps he has taken and will take (with specific dates) to protect employees against the hazard covered by the standard. OPO i EINK CLE PISS OS PT SRT 7 REEF PT 72a (iv) a statement of when he expects to be able to comply with the standard and what steps he has taken and what steps he will take (with dates specified) to come into compliance with the standard, and (v) a certification that he has informed his employ- ees of the application by giving a copy thereof to their authorized representative, posting a statement giving a summary of the application and specifying where a copy may be examined at the place or places where notices to employees are normally posted, and by other appropriate means. A description of how employees have been informed shall be contained in the certification. The information to em- ployees shall also inform them of their right to petition the Secretary for a hearing. (C) The Secretary is authorized to grant a variance from any standard or portion thereof whenever he deter- mines, or the Secretary of Health, Education, and Welfare certifies, that such variance is necessary to permit an em- ployer to participate in any experiment approved by him or the Secretary of Health, Education, and Welfare de- signed to demonstrate or validate new and improved tech- niques to safeguard the health and safety of workers. (7) Any standard promulgated under this subsection shall prescribe the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions of safe use or exposure. Where appropriate, such standard shall also prescribe suit- able protective equipment and control or technological pro- cedures to be used in connection with such hazards and shall provide for monitoring or measuring employee expo- sure at such locations and intervals, and in such manner as may be necessary for the protection of employees. In addi- LT ELT LIDS CITI LE LEE LEI | ER POI PILL PL OO GLEE ERE POE GEL AD Vai © fyynghe erpeeayy 69 ere 9 RET Ee 73a tion, where appropriate, any such standard shall prescribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at his cost, to employees exposed to such hazards in order to most effectively determine whether the health of such em- ployees is adversely affected by such exposure. In the event such medical examination are in the nature of research, as determined by the Secretary of Health, Education, and Welfare, such examinations may be furnished at the ex- pense of the Secretary of Health, Education, and Welfare. The results of such examinations or tests shall be furnished only to the Secretary or the Secretary of Health, Education, and Welfare, and, at the request of the employee, to his phy- sician. The Secretary, in consultation with the Secretary of Health, Education, and Welfare, may by rule promul- gated pursuant to section 553 of Title 5, make appropriate modifications in the foregoing requirements relating to the use of labels or other forms of warning, monitoring or measuring, and medical examinations, as may be war- ranted by experience, information, or medical or techno- logical developments acquired subsequent to the promulga- tion of the relevant standard. (8) Whenever a rule promulgated by the Seeretary dif- fers substantially from an existing national consensus standard, the Secretary ‘shall, at the same time, publish in the Federal Register a statement of the reasons why the rule as adopted will better effectuate the purposes of this chapter than the national consensus standard. (c) Emergency temporary standards. (1) The Secretary shall provide, without regard to the requirements of chapter 5 of Title 5, for an emergency temporary standard to take immediate effect upon publi- cation in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to i ie _ = ¢ x opts. ear _ - - a A Bs OBES LIB ETERS PELLET APR G IIE IL LORS LES IPL EEG AS SP PMI LELALLE IGOR, IGN ‘ 74a substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger. (2) Such standard shall be effective until superseded by a standard promulgated in accordance with the procedures prescribed in paragraph (3) of this subsection. (4) Upon publication of such standard in the Federal Register the Secretary shall commence a proceeding in accordance with subsection (b) of this section, and the standard as published shall also serve as a proposed rule for the proceeding. The Secretary shall promulgate a stand- ard under this paragraph no later than six months after publication of the emergency standard as provided in para- graph (2) of this subsection. (d) Variances from standards; procedure. Any affected employer may apply to the Secretary for a rule or order for a variance from a standard promulgated under this section. Affected employees shall be given notice of each such application and an opportunity to participate in a hearing. The Secretary shall issue such rule or order if he determines on the record, after opportunity for an inspection where appropriate and a hearing, that the pro- ponent of the variance has demonstrated by a preponder- ance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard. The rule or order so issued shall prescribe the conditions the employer must maintain, and the prac- tices, means, methods, operations, and processes which he must adopt and utilize to the extent they differ from the standard in question. Such a rule or order may be modified or revoked upon application by an employer, employees, or -” Pe eS a OKT. ROMS LLDPE LOE LLELOD A ETNA ONE ELS, ME ED GIMP APT eG 75a by the Secretary on his own motion, in the manner pre- scribed for its issuance under this subsection at any time after six months from its issuance. (e) Statement of reasons for Secretary’s determinations; publication in Federal Register. Whenever the Secretary promulgates any standard, makes any rule, order, or decision, grants any exemption or extension of time, or compromises, mitigates, or settles any penalty assessed under this chapter, he shall include a statement of the reasons for such action, which shall be published in the Federal Register. (f) Judicial review. Any person who may be adversely affected by a stand- ard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a peti- tion challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay of the standard. The determinations of the Secretary shall be conclusive if supported by substantial evidence in the rec- ord considered as a whole. (g) Priority for establishment of standards. In determining the priority for establishing standards under this section, the Secretary shall give due regard to the urgency of the need for mandatory safety and health standards for particular industries, trades, crafts, occupa- tions, businesses, workplaces or work environments. The Secretary shall also give due regard to the recommenda- ; 4 ; AAG ROLE VEE REE MEE MS SE LE ELL ILL LIYE ALLELE. BEESLEY eae LYSE 76a tions of the Secretary of Health, Education, and Welfare regarding the need for mandatory standards in determin- ing the priority for establishing such standards. § 657. Inspections, investigations, and recordkeeping. (a) Authority of Secretary to enter, inspect, and investi- gate places of employment; time and manner. In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized— (1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and (2) to inspect and investigate during regular work- ing hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee. (b) Attendance and testimony of witnesses and produc- tion of evidence; enforcement of subpoena. In making his inspections and investigations under this chapter the Secretary may require the attendance and tes- timony of witnesses and the production of evidence under oath. Witnesses shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of a contumacy, failure, or refusal of any person to obey such an order, any district court of the United States or the United States courts of any territory or pos- —— Re al P ¥ a ae OP bs - 77a session, within the jurisdiction of which such person is found, or resides or transacts business, upon the applica- tion by the Secretary, shall have jurisdiction to issue to such person an order requiring such person to appear to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question, and any failure to obey such order of the court may be punished by said court as a contempt thereof. (c) Maintenance, preservation, and availability of records; issuance of regulations; scope of records; periodic in- spections by employer; posting of notices by employer; notification of employee of corrective action. (1) Each employer shall make, keep and preserve, and make available to the Secretary or the Secretary of Health, Education, and Welfare, such records regarding his activi- ties relating to this chapter as the Secretary, in cooperation with the Secretary of Health, Education, and Welfare, may prescribe by regulation as necessary or appropriate for the enforcement of this chapter or for developing information regarding the causes and prevention of occupational acci- dents and illnesses. In order to carry out the provisions of this paragraph such regulations may include provisions requiring employers to conduct periodie inspections. The Secretary shall also issue regulations requiring that em- ployers, through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this chapter, including the provisions of applicable standards. (2) The Secretary, in cooperation with the Secretary of Health, Education, and Welfare, shall prescribe regula- tions requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, in- juries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job. 78a (3) The Secretary, in cooperation with the Secretary of Health, Education, and Welfare, shall issue regulations re- quiring employers to maintain accurate records of em- ployee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or meas- ured under section 655 of this title. Such regulations shall provide employees or their representatives with an oppor- tunity to observe such monitoring or measuring, and to have access to the records thereof. Such regulations shall also make appropriate provision for each employee or former employee to have access to such records as will in- dicate his own exposure to toxic materials or harmful phys- ical agents. Each employer shall promptly notify any em- ployee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels which exceed those prescribed by an applicable occupational safety and health standard promulgated under section 655 of this title, and shall inform any employee who is being thus exposed of the corrective action being taken. (d) Obtaining of information. Any information obtained by the Secretary, the Secre- tary of Health, Education, and Welfare, or a State agency under this chapter shall be obtained with a minimum bur- den upon employers, especially those operating small busi- nesses, Unnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasi- ble. (e) Employer and authorized employee representatives to accompany Secretary or his authorized representative ' on inspection of workplace; consultation with em- ployees where no authorized employee representative is present. Subject to regulations issued by the Secretary, a rep- resentative of the employer and a representative author- ized by his employees shall be given an opportunity to 79a accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) of this section for the purpose of aiding such inspection. Where there is no authorized employee repre- sentative, the Secretary or his authorized representative shall consult with a reasonable number ‘of employees con- ‘cerning matters of health and safety in the workplace. (f) Request for inspection by employees or representative cf employees; grounds; procedure; determination of request; notificatior of Secretary or representative prior to or during any inspection of: violation; pro- cedure for review of refusal by representative of Sec- retary to issue a citation for alleged violations. (1) Any employees or representative of employees who believe that a violation of a safety or health standard ex- ists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the em- ployees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time’ of inspection, except that, upon the request of the person giving such notice, his name and the names of indi- vidual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section. If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accord- ance with the provisions of this section as soon as prac- ticable, to determine if such violation or danger exists. If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writ- ing of such determination. _— SS MOSS “ ; REL B GAOT AEA ERS 9 LE acs et ! ! 80a (2) Prior to or during any inspection of a workplace, any employees or representative of employees employed in such workplace may notify the Secretary or any representa- tive of the Secretary responsible for conducting the inspec- tion, in writing, of any violation of this chapter which they have reason to believe exists in such workplace. The Secre- tary shall, by regulations, establish procedures for informal review of any refusal by a representative of the Secretary to issue a citation with respect to any such alleged viola- tion and shall furnish the employees or representative of employees requesting such review a written statement of the reasons for the Secretary’s final disposition of the case. (g) Compilation analysis, and publication of reports and information; rules and regulations. (1) The Seeretary and Secretary of Health, Education, and Welfare are authorized to compile, analyze, and pub- lish, ‘either in, summary or detailed form, all reports or information obtained under this section. (2) The Secretary and the Secretary of Health, Educa- tion, and Welfare shall each prescribe such rules and reg- ulations as he may deem necessary to carry out their re- lations dealing with the inspection of an employer’s es- tablishment. § 658. Citaticas. (a) Authority to issue; grounds; contents; notice in lieu of citation for de minimis violations. If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 654 of this title, of any standard, rule or order promulgated pursuant to sec- tion 655 of this title, or of any regulations prescribed pur- - suant to this chapter, he shall with reasonable promptness Diu issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the chapter, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis vio- lations which have no direct or immediate relationship to safety or health. (b) Posting. Each citation issued under this section, or a copy or copies thereof, shall be prominently posted, as prescribed in regulations issued by the Secretary, at or near each place a violation referred to in the citation occurred. (c) Time for issuance. No citation may be issued under this section after the expiration of six months following the occurrence of any violation. § 659. Enforcement procedures. (a) Notification of employer of proposed assessment of penalty subsequent to issuance of citation; time for notification of Secretary by employer of contest by employer of citation or proposed assessment; citation and proposed assessment as final order upon failure of employer to notify of contest and failure of em- ployees to file notice. If, after an inspection or investigation, the Secretary issues a citation under section 658(a) of this title, he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under i ] 4 »