Statement of the American Society of Safety Engineers
Senate Health, Education, Labor and Pensions Committee
Subcommittee on Employment, Safety and Training
Hazard Communication in the Workplace
March 25, 2004
Chairman Enzi and Respected Subcommittee Members:
The American Society of Safety Engineers (ASSE) is the oldest and largest society of safety professionals in the world. Founded in 1911, ASSE represents about 30,000 dedicated safety, health and environmental (SHE) professionals. Our members are dedicated to excellence, expertise and commitment to the protection of people, property and the environment worldwide. The Society has thirteen Practice Specialties across every type of SHE practice -- Academics, Construction, Consultants, Engineering, Environmental, Healthcare, Industrial Hygiene, International, Management, Mining, Public Sector, Risk Management and Insurance, and Transportation. ASSE's members in these specialties are leaders in their fields with the knowledge and expertise needed to advance occupational safety and health forward on a global level. On behalf of our members, ASSE is pleased to submit this statement for inclusion in the formal hearing record.
ASSE commends the Subcommittee for addressing the issue of hazard communication (HazCom) in the 21st Century workplace, especially as it pertains to global harmonization and the HazCom system cooperatively developed last year under the auspices of the United Nations with significant input from the Occupational Safety and Health Administration
(OSHA), Environmental Protection Agency (EPA), and the Department of State.
With more than 32 million workers exposed to 650,000 hazardous chemical products in more than 3 million American workplaces, HazCom is a significant workplace and public safety and health issue. Moreover, each year emergency responders are seriously injured or killed because of deficient information about chemicals on site when they are addressing situations such as fires, explosions or transportation disasters. Our expanding multi-lingual population also requires consideration of a HazCom system that has greater utility than the present Anglo-centric system in place. Significant challenges face Congress and both federal and state agencies tasked with managing HazCom as the United States continues to cooperate with other nations in implementing a unified system that can protect individuals across international boundaries.
All existing HazCom rules and guidance in the United States - whether codified by various governmental entities or developed by consensus organizations - recognize that not only can certain chemicals present physical hazards such as fires and explosions, they can cause a variety of health problems, including sterility, cancer, chemical and thermal burns, and heart, kidney or lung disease.
In 1983, OSHA enacted its Hazard Communication (HCS) Standard (29 CFR 1910.1200) to reduce injuries and illnesses related to exposures in the chemical industry. Today, the standard covers chemical exposures that occur in all non-mining workplaces. In 2002, the Mine Safety and Health Administration (MSHA) adopted a system quite similar to OSHA's standard (30 CFR Part 47). OSHA's standard is the second most cited federal occupational safety and health standard. More than 7,000 citations were issued in FY 2003, amounting to more than $1.3 million in penalties. MSHA's standard, while newer, also ranks among the most-often cited rules. In addition, other federal agencies, including the Department of Defense, NASA, and the Department of Transportation, have regulations that include hazard communication components and/or have published "hazard communication" guidance.1
Increasingly, these United States measures must be reviewed against international HazCom developments. In 2003, the United States and other nations cooperatively developed a Globally Harmonized System (GHS) of hazard communication. In addition, the global safety and health community has moved into the mainstream a new method termed "control banding" that can be utilized to minimize potential worker exposures to hazardous chemicals. This new method utilizes key statements included in MSDSs to assist in the selection of appropriate chemical control methods.
OSHA/MSHA HazCom Standards
Current U.S. Department of Labor Hazard Communication (HazCom or HCS) regulations (29 CFR 1910.1200 and 30 CFR Part 47) apply to all employers producing or using a hazardous chemical to which a worker can be exposed under normal conditions of use or in a foreseeable emergency. If a hazardous chemical is "known to be present" by the chemical manufacturer or the employer, it is covered by the standard. The basic requirements of OSHA/MSHA Hazard Communication mandate that employers:
· Inventory the chemicals at the workplace and determine which are hazardous.
Only chemical manufacturers and importers are required to perform hazard determinations on all chemicals they produce or import, although distributors and employers may also choose to do so. Hazard determination procedures must be in writing and made available, upon request, to employees, and to representatives from OSHA/MSHA and/or the National Institute for Occupational Safety and Health (NIOSH). Employers are responsible for conducting a hazard assessment to determine which hazardous chemicals are currently being used by doing a "walk-around inspection" and checking records, obtaining an MSDS for each identified chemical hazard, determining which workers may be exposed in the normal course of their duties, and providing appropriate training. The employer must also, of course, take remedial actions to control the hazards, limit worker exposures to the maximum extent feasible, and provide workers with appropriate personal protective equipment.
In an effort to harmonize HCS with analogous environmental statutes, OSHA and MSHA exempted hazardous substances defined by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) when the hazardous substance is the focus of remedial or removal action being conducted under CERCLA. There is some interface between chemicals listed in an employer's chemical hazard inventory and community right-to-know laws, including the EPA's SARA Title III. The standard also exempts consumer products and hazardous substances, which are defined in the Consumer Product Safety Act and Federal Hazardous Substances Act respectively, where the employer can show that it is used in the workplace for the purpose intended by the chemical manufacturer or importer, and the use results in a duration and frequency of exposure not greater than the range of exposures that could reasonably be experienced by consumers when used for the purpose intended.
Labeling requirements -- The OSHA/MSHA HCS also includes labeling requirements, and the employer must ensure that containers of hazardous chemicals are marked, tagged, or labeled with the identity of the hazardous chemical and appropriate hazard warnings. The label must be in English and prominently displayed, although OSHA and MSHA permit employers to add warnings in other languages or use symbols to help workers understand the label contents. This is critical in light of the growing number of multi-lingual workplaces in the U.S. The information on a container label varies depending on what type of container it is and how it is used. Chemical manufacturers, importers, and distributors are required to ensure that every container of hazardous chemicals they ship is appropriately labeled with such information and with the name and address of the producer or other responsible party. Employers purchasing chemicals can rely on the labels provided by their suppliers, but if the employer subsequently transfers the chemical from a labeled container to another, the employer must label that container unless subject to the agencies' portable container exemptions.
The OSHA/MSHA hazard communication standards recognize the use of alternative in-plant labeling systems such as the "HMIS" (Hazardous Materials Information System), National Fire Protection Association ("NFPA"), and others that may be used in industry. These systems rely on numerical and/or alphabetic codes to convey hazards and are generally non-specific. These agencies permit these types of in-plant labeling systems to be used when an employer's overall HCS program is proven to be effective despite the potential absence of target organ information on container labels. The employer must assure through more intensified training that its employees are fully aware of the hazards of the chemicals used and that their training program instructs employees on how to use and understand the alternative labeling systems.
MSDS -- Chemical manufacturers and importers must obtain and develop an MSDS for each hazardous chemical they produce or import. Employers must maintain and use a material safety data sheet in the workplace for each hazardous chemical they use. The MSDS provides information about the nature of the chemical, necessary personal protective equipment, how to handle unexpected spills or releases, and emergency procedures.
Under the current federal standards, each MSDS must be in English, although the employer may maintain copies in other languages as well, and must contain specific information including contact data for the chemical manufacturer, importer, employer or other responsible party; the identity used on the label; the substance's chemical and common name(s); information on mixture ingredients, information on carcinongenicity, physical and chemical characteristics, health hazards, routes of entry, permissible exposure limits (PELs) and other relevant exposure limits; precautions for safe handling and recommended control measures; and, appropriate personal protective equipment for workers and emergency responders. The sheets must also be dated and note when it was last revised.
This month, OSHA has launched a multi-part initiative of enforcement and compliance assistance activities relative to HazCom. From the enforcement end, OSHA will focus on MSDSs. Compliance officers will have a list of critical information for selected chemicals to be used as a reference when reviewing MSDSs on file at a worksite. If an inspector finds an MSDS is inaccurate, the manufacturer will be notified of the deficiencies, and will be cited if the manufacturer does not take corrective action. Employees will also be provided with telephone and fax numbers for use to articulate concerns about the content of MSDSs.
ASSE applauds OSHA's initiative in developing guidance materials and also in making international chemical safety cards covering over 1,300 substances available on the agency website, www.osha.gov. However, ASSE cautions against over-investing OSHA's limited financial resources in developing HazCom materials now that may soon be outdated, if modifications to 29 CFR 1910.1200 are determined to be necessary in order to achieve conformity with the U.N. global harmonization system.
OSHA has also solicited public comment on two new publications, Draft Guidance for Hazard Determination for Compliance with the OSHA Hazard Communication Standard and Draft Model Program for Hazard Communication. ASSE plans to participate in the stakeholder process for these instructional materials.
Global Harmonization System
The genesis of the Global Harmonization System (GHS) addressing hazard communication occurred at the 1992 "Rio Earth Summit." The stated goal was to develop a "globally harmonized hazard classification and compatible labelling system, including national safety data sheets and easily understandable symbols, should be available, if feasible, by the year 2000." Although the developers missed this target date, the GHS was finalized in early 2003, with a final implementation goal of January 2008. The GHS is a voluntary system and, as such, does not impose binding treaty obligations on countries. However, to the extent that countries adopt GHS into national regulatory requirements, it will be binding upon the regulated community.
The United Nations' Recommendations on the Transport of Dangerous Goods was predecessor project, which developed criteria for classifying and labeling dangerous goods for purposes of transportation but which did not address environmental, worker or consumer safety regulations. A core concept agreed upon by participants in developing the GHS was that the level of protection offered to workers, consumers, general public and environment should not be reduced.
Benefits of the new GHS include
The GHS hazard classification criteria were adopted by consensus for physical hazards and key health and environmental classes. Standardized label elements -- symbols, signal words, hazard statements -- were developed along with standard format for Safety Data Sheets (SDS), the GHS counterpart to MSDS. The GHS also addresses product identifiers, confidential business information, and precedence of hazards. Target audiences include consumers, workers, transport workers and emergency responders.
The GHS requires the following information on product and container labels:
Guidance on the preparation of SDSs was drawn from the following sources:
Training is also a critical component of the GHS, and the developments encourage such training to address workers, emergency responders, and those involved with preparation of labels, SDS and HazCom strategies as part of risk management systems
Participants in the GHS project agreed that validated data already generated for classification of chemicals under existing systems should be accepted when reclassifying the chemicals under GHS. However, the new harmonized system may require adaptation of existing methods for testing of chemicals. Significantly, the GHS was not intended to harmonize risk assessment procedures or risk management decisions such as the establishment of a PEL for employees). It also leaves to participating countries the decision as to which of the GHS "building blocks" will be applied in different parts of their systems.
The current OSHA/MSHA standard is much less prescriptive than the GHS, which contains specific pictures and phrases that companies must place on their goods. Therefore, modification may be required at some point in the future as the OSHA/MSHA HCS contains general performance requirements for communicating hazards, but allows flexibility for companies that have their own hazard labeling system.
Voluntary Consensus Standards
ASSE serves as Secretariat of nine American National Standards Institute (ANSI) Committees and projects that develop safety and health standards used by private sector organizations and state and federal governmental agencies. ASSE members sit on over forty additional standards development committees, including the ASTM E34 Committee that addresses occupational safety and health, including hazard communication.
Some voluntary consensus standard organizations, such as ANSI and ASTM, have developed standards that address hazard communication. ANSI promotes the use of U.S. standards internationally, and encourage the adoption of international standards as national standards where appropriate to the needs of users. ANSI is also the U.S. representative on two major non-treaty international standards organizations - the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC). Therefore, its role should not be overlooked in the global harmonization process.
To the extent that ANSI and ASTM standards have utility and are consistent with the GHS, Congress and the federal regulatory agencies should consider them for incorporation in any new government-wide hazard communication system. This is consistent with directions given by Congress in the Technology Transfer Act of 1995 (P.L. 104-113) and the Office of Management and Budget's Circular A-119.
Some relevant consensus standards include the ANSI Z535 series (addressing safety color codes for facility environmental and safety systems), ANSI Z-400.1 (Hazardous Industrial Chemicals - Material Safety Data Sheets), ANSI Z490.1 (Criteria for Accepted Practices in Safety, Health and Environmental Training), ASTM E1445-03 (Standard Terminology Relating to Hazardous Potential of Chemicals), and two standards developed by the ASTM E34.40 subcommittee on hazard communication, ASTM E1628-98 (Standard Practice for Preparing Material Safety Data Sheets to Include Transportation and Disposal Data for the General Services Administration) and ASTM E2238-02 (Standard Guide for Evacuation Route Diagrams).
For the past year control banding has become a topic of international significance and John Henshaw, Assistant Secretary of Labor for Occupational Safety and Health, recently has discussed publicly the benefits of control banding. Control banding is a risk assessment method that couples information on MSDSs with actual usage information in order to select one of four control methods -- substitution of less hazardous chemicals, engineering controls, ventilation, and containment. Using MSDS information and tables, chemicals are placed into exposure classes or "bands" based on volatility, toxicity, and common properties. Consideration is given to the use and quantity of the chemical to select the appropriate control method.
Although this method provides what appears to be a simple and largely useful way to select exposure control methods, several limitations must be taken into consideration if and when control banding is promoted in the U.S. as a leading tool to advance HazCom. PELs are not incorporated into the current scheme. Given that OSHA regulates exposures and selection of personal protective equipment on the basis of PELs, if the method is to be used in the United States, it would need to be amended to either incorporate PEL considerations or current regulations would need to be amended to eliminate the need for PEL measurement. In addition, selection of control methods in the United Kingdom is based on inclusion of specific information in MSDSs that is not currently incorporated into MSDSs used in the United States. Finally, control banding, though useful, does not adequately address every chemical in a band. Some chemicals, though included in certain bands, may cause reactions outside the norm of the band and require unique responses that banding simply will not address. Care must be taken to ensure that control banding is used with this kind of warning always in mind.
In the current economic climate, global harmonization has taken on heightened importance, and any issue surrounding HazCom must be carefully scrutinized from an international perspective for the purpose of helping United States companies and their SHE managers achieve greater global conformity and, as a result, competitiveness. ASSE and its members were involved throughout the GHS development process and recognize that its implementation in the U.S. will require ongoing cooperation between the private sector and numerous federal and state agencies. State plan states may also need to revise HazCom programs that differ from OSHA's requirements. Moreover, adoption of the GHS system will likely require significant revision of EPA standards with unique labeling requirements, including the Federal Insecticide, Fungicide and Rodenticide Act and chemical "risk management" provisions of the Clean Air Act. Again, state agencies that have their own environmental right-to-know laws may also face challenges in properly adapting those statutes to fit the GHS model.
The issue of whether OSHA should continue a leadership role in this regard or delegate its powers in the hazard communication spectrum to a single non-regulatory agency that would direct the efforts of other regulatory agencies must not be decided without full consideration of all ramifications. There is also value in considering how existing voluntary consensus standards fit into the framework of HazCom global harmonization.
Although the U.S. Department of State was in charge of the U.S. activities on GHS, this is not likely to be the appropriate agency to carry out this function in the long-term. Because of the implications for modification of existing statutes and realignment of regulatory powers, it is likely that congressional action will be warranted. As Congress and the affected agencies consider how to create a new coordinating body to handle the domestic implementation of GHS, ASSE pledges its assistance in advancing this project. It is critical that any such committee include input from Certified Safety Professionals, Certified Industrial Hygienists and others with the requisite demonstrated qualifications to have full understanding of chemical safety and related processes. Any such system must achieve the goal of being transportable for multi-national companies while still providing a level of protection for American workers that is equivalent to, or greater than, the protections now afforded under federal and state laws.
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