AMERICAN SOCIETY OF SAFETY ENGINEERS

1800 East Oakton Street
Des Plaines, Illinois 60018-2187
847.699.2929
FAX 847.296.3769
www.asse.org

May 17, 2004

OSHA Docket Office
Docket No. H022J
Room N-2625
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210

E-mail: http://ecomments.osha.gov

RE: ASSE Comments on Draft OSHA Guidance Documents Concerning Hazard Communication Standard

Dear Docket Officer:

The American Society of Safety Engineers (ASSE) is pleased to submit the following comments for Docket No. H022J concerning 29 C.F.R. 1910.1200, the Hazard Communication Standard, and the draft documents related to Hazard Determination and Training of Employees. ASSE is the oldest and largest society of safety engineers and safety professionals in the world. Founded in 1911, ASSE represents approximately 30,000 dedicated safety and health professionals.

ASSE's membership includes Certified Safety Professionals, Certified Industrial Hygienists, Professional Engineers, academicians, fire protection engineers, system safety experts, health professionals and an impressive collection of other disciplines. Our members are dedicated to excellence, expertise and commitment to the protection of people, property and the environment worldwide. The Society has

thirteen (13) practice specialties including Construction, Mining, Consultants, Engineering, Environmental, Industrial Hygiene, International, Management, Risk Management and Insurance, and Transportation. The ASSE members in these divisions are leaders in their fields with the knowledge and expertise needed to move safety and health forward on a global level.

We commend the Occupational Safety and Health Administration (OSHA) for addressing the issue of hazard communication in the 21 st Century and developing tools to assist employers, workers and chemical manufacturers and importers to understand this mandatory standard's requirements, their respective responsibilities, and the potential health and safety hazards arising from the use of chemicals in the workplace. We are somewhat concerned, however, that the draft documents appear to ignore the pending issue of global harmonization of “HazCom” with the system cooperatively developed last year under the auspices of the United Nations, with significant input from the federal OSHA, Environmental Protection Agency (EPA), and the Department of State.

At the March 25, 2004, hearing on hazard communication, Senator Michael Enzi (R-WY) advised OSHA that it should work to conform its requirements to those of the Global Harmonization System (GHS) in order to satisfy the target January 2008 deadline for worldwide conformity. Thus, we encourage the agency to carefully review the GHS as it makes final changes to these documents, so that they will have utility both today and in the years to come. The basic precepts of the GHS are set forth more fully below.

Background

HazCom continues to be a significant workplace and public safety and health issue. More than 32 million workers are exposed to 650,000 hazardous chemical products in more than 3 million American workplaces. 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 English-language system in place. Thus, additional training and guidance tools are integral to protecting all workers. We hope that OSHA will make the final documents available in Spanish, especially the “PowerPoint” training materials that are a large section of the Draft Model Training Program.

In 1983, OSHA enacted its Hazard Communication (HCS or HazCom) Standard (29 CFR 1910.1200) to reduce injuries and illnesses related to exposures in the chemical industry, and today the standard covers chemical exposures that occur in all non-mining workplaces. 29 CFR 1910.1200 is OSHA's second most cited standard -- more than 7,000 citations were issued in FY 2003, amounting to more than $1.3 million in penalties.

The basic requirements of OSHA/MSHA Hazard Communication mandate that employers:

  • Inventory the chemicals at the workplace and determine which are hazardous.
  • Keep a list of the hazardous chemicals.
  • Establish a written HCS program.
  • Prepare a label and Material Safety Data Sheet (MSDS) for hazardous chemicals that the employer produces on site.
  • Make sure that containers of hazardous chemicals are labeled.
  • Keep MSDSs for the hazardous chemicals at the worksite.
  • Train all employees about the HCS program and the hazardous chemicals to which they can be exposed.
  • Allow workers (and other workers on site) to access at the HCS information and provide them with a copy upon request.

The draft guidance documents, which ASSE understands are not intended to impose any new compliance obligations, address identification of hazardous chemicals (the “inventory/determination” steps), evaluation of information necessary to accurately prepare MSDSs and labels for hazardous chemicals, and methods of training workers in hazard recognition and prevention/control. We will discuss each document individually.

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 labeling 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. Therefore, its utility was limited in terms of providing a comprehensive global system to replace existing worker safety frameworks adopted in the United States and other nations. 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.

The benefits of the new GHS may include:

  • Greater regulatory consistency among countries;
  • Safer transportation, handling and use of chemicals;
  • Improved understanding of hazards;
  • Increased compliance and reduced costs for companies involved in international activities; and
  • Enhanced protection of workers, consumers and potential exposed populations.

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 SDS. 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:

  • Signal Words
  • Hazard Statements
  • Precautionary Statements and Pictograms
  • Product Identifier
  • Supplier Identification
  • Multiple Hazards and precedence of hazard information
  • Arrangements for presenting the GHS label elements
  • Special Labeling Arrangements

Guidance on the preparation of “Safety Data Sheets” (the GHS version of MSDSs) was drawn from the following sources:

  • ILO Recommendation 177 on Safety in the Use of Chemicals at Work.
  • ISO Standard 11014.
  • European Union SDS Directive 91/155/EEC.
  • ANSI Standard Z400.1.

Standardized label elements (symbols, signal words, hazard statements) were developed along with standard format for SDS. 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 (e.g., establishment of a permissible exposure limit 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 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 HCS contains general performance requirements for communicating hazards, but allows flexibility for companies that have their own hazard labeling system.

Draft Guidance for Hazard Determination

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. This is emphasized in the draft document, which appears to strongly suggest that employers should consider verification of the information provided by manufacturers and importers by checking certain reference materials.

Chemical manufacturers and importers must obtain and develop a material safety data sheet (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.

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 (e.g., doing a “walk around inspection” and checking records), obtaining an MSDS for each identified chemical hazard, and then 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 and limit worker exposures to the maximum extent feasible, and to provide workers with appropriate personal protective equipment.

As a whole, this is a good guidance document written, to the extent feasible, in “Plain English.” As such, it should be of great utility to the affected community of manufacturers and employers. However, the steps involved in “ensuring” that all appropriate reference-checks and/or product testing are done may indeed terrify smaller employers who could erroneously believe that this is now part of their ongoing OSHA compliance obligations. It is critical for OSHA to emphasize emphatically that such requirements rest exclusively on the manufacturer/importer segment (except for those employers who “manufacture” covered chemicals on site).

ASSE is disturbed that the section captioned “How Should This Guidance Document Be Used?” contains the following statement:

The interpretation of information relating to the physical and health hazards associated with a chemical can be a highly technical undertaking, and is often conducted by experienced toxicologists and industrial hygienists. (pp. 3-4).

By no means does this comprise the universe of professionals qualified by virtue of education, experience and/or certifications to conduct such hazard determinations, and safety professionals generally (and Certified Safety Professionals, in particular) have inexplicably been omitted from this list. Similarly, not all “industrial hygienists” (Certified or otherwise) are qualified to engage in this undertaking. There may be other classes of professionals, such as chemical engineers and forensic chemists, who also can assist employers and manufacturers in making such determinations and in interpreting information related to chemical hazards. This section needs to be reworked, at a minimum to recognize the role of safety professionals in hazard determination.

In the section relating to “Selection of Chemicals,” see p. 11, OSHA indicates that the chemical inventory “should anticipate the full range of downstream uses of the products and account for any hazardous by-products which may be formed. This is a daunting and imprecise process, as no professional can reasonably be expected to anticipate all uses to which products may be subject by third party acts, and then determine hazardous by-products thereof. The examples given (for gasoline and diesel) are fairly common, but as written this section is highly ambiguous as to the extent of analysis needed for far less common chemicals that could have fairly obscure uses based on unique worksite situations or boutique industries. Perhaps OSHA can expand this guidance area to suggest ways to limit the scope of such obligations to those “reasonably anticipated” as common use of such chemicals, and included suggested common uses for the chemicals listed in Appendix C, and the likely resulting by-products. This would be exceptionally helpful for those situations where employers (rather than “professional” manufacturers) are tasked with creating MSDSs for products they “manufacture” on site for downstream sale that may include components listed by OSHA as hazardous chemicals.

With respect to “Data Collection,” p. 12, OSHA references Appendix B for the “generally reliable” sources of information on chemical hazards and chemical identity, but adds (correctly) that “[f]or new or less commonly used chemicals, there may not be data available in any of these sources” and urges employers to “test the chemical to determine chemical and physical properties and identify hazards.” If the first part of this paragraph is correct, and such chemicals are not listed by OSHA, NTP, IARC, ACGIH in § 1910.1200, then it would appear that the employer or manufacturer/importer does not have the obligations to test them, nor to include them on the MSDSs or in the HazCom program. Under such circumstances, the guidance could be interpreted as creating new regulatory burdens. Clarification of this section is warranted.

One of the more controversial provisions of HazCom over the years has been the requirement that evidence based on one positive study conducted in accordance with established scientific principles is “sufficient to establish a hazardous effect” if the results meet the standard's definitions of “health hazards.” This requirement is recapped at p. 16 of the guidance. Because of the large volume of studies that are published each year, both in the U.S. and abroad, this provides a moving target for compliance by manufacturers/importers and employers – many of whom lack access to the databases where such studies are published (if they are available, at all, online) and who do not subscribe to the universe of scientific journals. Moreover, some studies that are initially published as “positive” are subsequently discredited by later studies or even rescinded by their own authors if procedural mistakes are later discovered. It would be beneficial for OSHA to advise on the extent to which employers are expected to go in tracking such research for chemical products they manufacture, and perhaps indicate free sources of this information to aid employers, as well as safety and health professionals who may perform evaluations, with compliance obligations.

OSHA correctly recognizes the imprecision involved with identifying “every possible health effect” that can occur in the workplace as a result of chemical exposure, p. 25, and that doing so is unrealistic, yet it adds that the difficulty “does not negate the need for employees to be informed of such effects and be protected from them.” These statements, contained in the same paragraph, appear to be contradictory with respect to the employer's obligations. Clarification is needed. This might also be an appropriate place to address possible utilization of “control banding” as a means of grouping common hazards for ease in training and prompt hazard recognition in emergency situations.

ASSE supports use of more charts and checklists (like the one on pp. 40-43) that can aid employers and manufacturers/importers in performing the necessary documentation of their data. Similar checklists should be considered to assist in complying with other parts of this standard.

Appendices to Draft Document on Hazard Determination

Appendix A provides a glossary of terms and definitions. This is a useful reference for both employers and chemical manufacturers and importers. We suggest that, to the extent that it includes definitions that either differ from (by using simplified language), or are in addition to, those incorporated in 29 CFR 1910.1200, such definitions be identified to avoid confusion.

Although a quite impressive bibliography is included as Appendix B to the Draft Guidance, as a practical matter most of these reference materials are unavailable to the majority of employers from public libraries or free sources. They are also quite expensive, should one choose to build a library for this purpose and many are revised frequently (some annually).

Thus, there may be value in setting forth a separate section of links to “free” references on the Internet and/or a way of making some of the non-proprietary information available through links on OSHA's website. As it stands, the list would be daunting to all but the most sophisticated employers – probably those with corporate safety departments that include Certified Safety Professionals and/or Certified Industrial Hygienists – and it would be difficult for the majority of employers to truly know which of the listed publications would be of greatest utility in building a basic chemical safety library.

In addition, with respect to Appendix B, we note that a number of the cited sources are 10-to-20 years old, making the data suspect in terms of reflecting the “latest” scientific information, which is the goal of updating MSDSs through reference to such materials. Examples include the Clinical Toxicology of Commercial Products (dated 1984), the Handbook of Industrial Toxicology (1987), and Hazardous Materials Toxicology: Clinical Principles of Environmental Health (1992). Before listing such materials as “Primary” sources of information, ASSE hopes that OSHA staff has reviewed these volumes to determine that all information still accurately reflects sound scientific data. There are also volumes related to chemicals, hazard recognition and prevention available through ASSE that may be useful to add to this compendium. They include Hazardous Materials Behavior and Emergency Response Operations, Denis E. Zeimet, Ph.D., CIH and David N. Ballard (ASSE, 2000); and, Product Safety Management and Engineering, Willie Hammer, (ASSE, 2 nd Edition ).

In the “Useful Literature” category, OSHA properly includes the ANSI Z400.1 standard, but inexplicably omits references to the various “HazCom” standards developed by the ASTM E34 committee on occupational health and safety's subcommittee on hazard communication. These include 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).

In addition, in Section VI of Appendix B, OSHA lists internet access addresses for information related to HazCom, and we note that ASSE's website has not been included although other safety organizations such as the National Safety Council have been included. The ASSE website contains many useful articles and other information on hazard communication compliance, as well as offering publications in this area and further links to information sites (a current search on standard 1910.1200 at the ASSE website will provide 18 “hits” and a search on “chemical” relates to more than 30 publications that may be of value in chemical hazard determination). The address is: http://www.asse.org . We hope you will include us in the final version of this document.

Appendix C lists all chemicals regulated by OSHA as “Toxic and Hazardous Substances” (under 29 CFR Part 1910) but fails to include the Permissible Exposure Limits adopted by the agency. If this is meant to be an “off the shelf” reference for employers to use (particularly those who may not regularly purchase the CFR volumes), it would be of great benefit to include those values in this section, as well as a layman's guide to interpretation of the requirements. Appendix D lists “OSHA Designated Carcinogens” without any further explanation of why this is significant in the “HazCom” context.

Appendix E lists the “NTP Designated Carcinogens” and includes therein many substances are are specifically excluded from the scope of OSHA's standard (e.g., “smokeless tobacco, environmental tobacco smoke, alcoholic beverage consumption), which will only serve to confuse employers as to the requirements of the standard and MSDSs. The same problem arises with Appendix F, “IARC Designated Carcinogens,” which lists these types of products as well as herbal remedies, salted fish, and Hepatitis B and C viruses, among other excluded substances.

Draft Model Training Program for Hazard Communication

ASSE has generally reviewed this lengthy document and will not attempt herein to “rewrite” any sections of the program due to the comment time constraints. However, we must note at the outset that, if this is designed to be “user friendly” then publishing it as a 279-page PDF file (which will take most employers hours to download and print, if they do so at all) is probably not the best format. Many will be deterred just from the sheer size of the file from investigating further, and it would make much more sense to publish the simple “how to” guidance sections (Overview, and Sections I, II and III) as a single document, and then publish each of the appendixes as separate modules. This would greatly increase, in our opinion, the usage of the lesson plans, teaching slides and quizzes, which are of most practical value to the regulated community yet are buried nearly 100 pages into this comprehensive document.

We also suggest that, in Section II (Guidance for Site-Specific Training), OSHA reference ANSI Z490.1 Standard, Criteria for Accepted Practices in Safety, Health and Environmental Training , w hich concerns training practices relevant to Hazard Communication. This will augment the information from OSHA's Voluntary Training Guidelines (OSHA 2254) and will be useful for employers to consider when implementing this section of the HazCom standard.

The introductory section of the OSHA draft Model Training Program is clearly written in explaining the purpose and specific requirements of the HCS related to worker training. It might be appropriate to remind employers of their need to communicate hazard information as well to contract workers who may be exposed to hazardous chemicals generated at the worksite by the prime employer or other contractors.

ASSE commends OSHA for emphasizing the distinctions between simply “providing information” and “training” as well as the need to be responsive to special needs and preferences of “learners” in different age groups and populations (Section II, p.5 and II-10-11). Moreover, although OSHA is clear that documentation of training is not mandated under the law, it suggests that it is logical to maintain records and provides appropriate guidance on how to do so efficiently. The information included at p. II-24 is particularly helpful in terms of what should be included in documentation of HCS training.

The guidance addresses training resources in terms of budget, location and shift work considerations, but does not adequately address human resources in terms of whether the employer has personnel on staff who can effectively conduct the requisite training. It may be beneficial, in Section II (e.g., at 4(b) on p. II-13) to address this and to alert employers that, in some situations, the use of third-party trainers who are qualified safety and health professionals may be useful in ensuring thorough training on these fairly complex subjects.

With respect to Appendix A, the same comments made concerning the “Definitions” appearing in the other draft document discussed above apply: OSHA needs to point out any “new” terms that are not part of the codified HCS and identify any definitions that substantively depart from those that are codified. Similarly, the same observations made concerning the references and sources of help discussed above (including references to ASSE's website and publications) would apply to Appendix B of the Model Training Program.

Finally, the “Lesson Plans” contained in Appendix C use a fairly accessible format and should be extremely helpful to those who do not regularly perform training in terms of what to cover and the emphasis areas (in terms of time concentration), as well as emphasizing the importance of evaluation (through quizzes). The Overhead Teaching slides in Appendix D will also be quite useful, but should also be made available in PowerPoint format since that is what is most often used in industrial training today. As far as Appendix E (“Quizzes” – misspelled in the draft version as “Quizes”), it would be helpful to provide an Answer Key for use by the instructor, to the extent feasible for information that is not site-specific.

Thank you for your consideration of ASSE's comments. We look forward to continued cooperative efforts with OSHA on this critical issue.

Sincerely,

James "Skipper" Kendrick, CSP
President

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