November 17, 2000

Dr. Carol Jones
Director, Office of Standards, Regulations, and Variances
Mine Safety and Health Administration
4015 Wilson Boulevard, Room #631
Arlington, VA 22203-1984

MSHA HAZCOM RULE - 30 CFR PART 47
RIN #1219-AA47

Dear Dr. Jones:

The purpose of this statement, from the American Society of Safety Engineers (ASSE), is to offer comment about the MSHA HazCom Interim Final Rule published in the Federal Register on October 3, 2000, 65 Fed. Reg. 59048.

Introduction
The American Society of Safety Engineers (ASSE), is the oldest and largest society of safety engineers and safety professionals in the world. Founded in 1911, ASSE represents almost 33,000 dedicated safety professionals. Falling under the ASSE membership are Certified Safety Professionals, Certified Industrial Hygienists, Professional Engineers, ergonomists, academicians, fire protection engineers, system safety experts, health professionals, and an impressive collection of other disciplines, skills, and backgrounds. We pride ourselves on our dedication to excellence, expertise, and commitment to the protection of people, property, and environment on a world?wide basis.

ASSE serves as Secretariat of seven (7) American National Standards Institute Committees (ANSI) developing safety and health standards which are used by private sector organizations as well as state/Federal governmental agencies such as MSHA, OSHA, etc. ASSE members sit on over forty (40) additional standards development committees and the Society sponsors educational sessions on standards development. The Society also has twelve (12) technical divisions consisting of: Mining, Construction, Consultants, Engineering, Environmental, Health Care, Industrial Hygiene, International, Management, Public Sector, Risk Management and Insurance, and Transportation. The ASSE members in these divisions are leaders in their field with the knowledge and expertise needed to move safety and health forward on a global level.

Need to Revise the MSHA HazCom Standard
ASSE agrees that there is a need to protect workers from exposure to hazardous chemicals. The Society has historically been a supporter of the direction mandated in OSHA's Hazard Communication Standard (HCS) through the actions of our members, public comments, training initiatives, and professional development activities.

The examples pointed out by MSHA in the "Need for HazCom" are heart-wrenching, but we are not sure if the proposed standard would have done anything to eliminate these situations. We believe there are already a myriad of criminal and civil actions that can, and perhaps should, be taken against these companies under other existing MSHA standards if the allegations made in the Federal Register can be documented and proven.

Currently, MSHA has several standards that parallel the requirements in the new HazCom standard, including mandatory miner and contractor training under 30 CFR Part 46 and Part 48; and the metal/nonmetal mining safety standards published at 30 CFR 56/57.16004 (containers for hazardous materials); 56/57.20011 (barricades and warning signs); and 56/57.20012 (labeling of toxic materials). In particular, the new Part 46 training rule, covering 10,000 mines in the surface nonmetal mining sector, just took effect on October 2, 2000 - the day before MSHA published its HazCom standard. It is premature to assume that it cannot be effective in preventing the types of injuries described in the HazCom rule's preamble.

While ASSE strongly supports the tenets of hazard communication, we are also concerned that MSHA's interim final rule is not appropriate at this time. It may make sense for MSHA to withdraw this rule for the short-term, in order to consider and take appropriate action in light of current developments with regard to the Global Harmonization System (GHS) initiative. This project is under the stewardship of the U.S Occupational Safety and Health Administration (OSHA), and has participation from agencies such as EPA, FDA, and others. MSHA should be part of this international initiative, if it is not already included.

Considering the emerging significance of GHS, and on-going DOL involvement, we are puzzled why MSHA is promulgating a HazCom standard at this point. With the U.S. government negotiating specific agreements through GHS that will impact HazCom, MSDS's and classification of chemicals on an international basis, we suggest the MSHA action can have potential adverse affect upon the government's negotiating abilities. A number of ASSE members working in the mining industry have observed that it may make more sense from a public policy perspective to see if the GHS initiative will move forward before finalizing a new HazCom rule. By the time MSHA's new standard is promulgated, litigated, implemented, and accepted by the mining community, there is the strong possibility that the GHS initiative will already require additional and significant changes in the newly developed mining industry programs. This is even more of a factor, if the GHS initiative is tied to different ISO (International Organization for Standardization) proposals, which is an issue apparently still under consideration.

One of our major concerns is that safety professionals will be responsible for implementing the MSHA rule as well as any other subsequent HazCom rules and standards, and that these could be inconsistent with one another. The result could be confusion and unnecessary costs. This is especially true since MSHA and OSHA are under the U.S. Department of Labor. From our perspective, this might be a good opportunity for both agencies to work together and come-up with one comprehensive HazCom document. We suggest that the GHS issue must be reported in the Federal Register along with formal findings, potential timelines, implementation costs, and potential interaction with organizations such as ISO or ILO as part of any MSHA final HazCom rule. The GHS initiative is a crucial aspect of hazard communication and MSHA cannot ignore it.

Training Aspects of the Standard
MSHA specifically notes that significant portions of the standard impact training. Our members suggest that it is critical that the HazCom standard's training requirements be integrated with existing hazard recognition/communication training requirements under 30 CFR Part 46 and Part 48 to avoid unnecessary duplication of effort which could take away from efforts to safeguard safety and health on mining sites.

ASSE also questions why the proposed ANSI Z490.1 Standard, Criteria for Best Practices in Safety, Health and Environmental Training, is not cited in the proposal or referred to in the overview. The Morella Amendment to the Technology Transfer Act of 1995 (Public Law 104-113) and the Office of Management Budget (OMB) Circular A-119 requires the Agency to review the proposed standard and consider it for inclusion when it is approved. Of specific interest is the point that MSHA has an excellent representative on the Z490 Committee, and that Agency appears to be in support of this voluntary national consensus standard. We strongly suggest that the ANSI Z490 be cited in the standard as a viable document to review/refer to upon its completion.

The charter of the American National Standards Committee, Z490 Criteria for Best Practices in Safety, Health and Environmental Training, was accredited by the American National Standards Institute on April 1, 1998. This Standard grew out of the recognized need for improvement in safety, health, and environmental training. Quality training is required to ensure that workers and safety, health, and environmental professionals have the knowledge, skills, and abilities necessary to protect themselves and others in the workplace. MSHA itself has continued to wrestle with training issues on both an internal and external basis for many years. This includes everything from training requirements for specific standards to the potential accreditation of specific training programs.

The rationale, offered to ANSI by ASSE in filing the application for establishing the project, was that these safety, health, and environmental training standards will improve areas of competence, quality and effectiveness. Their potential is to obtain standards of quality which ensure that safety and health training providers meet such standards. The standards of Best Practice, now called Accepted Practice, can help employers and consumers of training services select quality safety and health training materials, instructors, and other program components. Once established, these standards can be used to audit, monitor, evaluate, analyze, etc. national, industry-wide training of large and small training service providers as well as for corporations and government entities seeking third-party review of their employee training activities. Adding weight to this rationale was the approval of the ANS Z390.1-1995 standard, Accepted Practices for H2S Training, where industry demonstrated its support for such training criteria. This validation presented convincing testimony to show that affected parties/interest groups would support these types of standards development.

Labeling and MSDS Requirements
We note that MSHA mandates specific requirements for container labels. We question whether MSHA reviewed the existing American National Standard Z535 series. These standards address many of the issues MSHA is raising. Once again, the review of existing voluntary national consensus standards is required by OMB A-119 and Public Law 104-113. While the Agency does not have to automatically cite the standards by reference, it is required to review the documents and decide if they can be cited. If not, the Agency is bound to provide a rationale as to why the standards should not apply. We note that MSHA has failed to do so in this instance.

With respect to the MSDS requirements, MSHA did not cite the existing American National Standard, ANSI Z-400.1-1998 Hazardous Industrial Chemicals - Material Safety Data Sheets. We request a thorough and cogent analysis in the Federal Register explaining why MSHA did not cite, or apparently review, these voluntary national consensus standards for inclusion. We have also included our position statement, The Role of Consensus Standards in Occupational Safety and Health. ASSE supports the increased utilization of consensus standards in the formulation of legislation and regulation for occupation safety and health. Governmental agencies such as MSHA, OSHA, EPA, CPSC, NHTSA, etc. should utilize these consensus standards because they provide an efficient/effective alternative to traditional public sector rule making. ASSE advocates initiatives to encourage the utilization of national consensus standards as an effective/efficient option for meeting the demand of increased regulation/legislation in occupational safety and health since:

  • National consensus standards have fewer procedural burdens.
  • The consensus method provides for a balance between competing interests.
  • Consensus standards enable users to adapt provisions to meet unusual circumstances.
  • Much lower standards development cost are obtained.

In the interest of uniformity, we are not yet convinced that our members, working for mine operators, should be required to alter these MSDS's in order to include the MSHA permissible exposure limits for various chemical substances. We say this as we have grave concerns about the creation of unintended liabilities. Changing the content of MSDS's, which have been created by others with expert knowledge by an employer, even if mandated by MSHA, can arguably create a liability for employers as they took on the role of the final authority for each MSDS they alter.

Also consider while MSHA incorporates by reference the 1972 (coal) and 1973 (metal/nonmetal) ACGIH threshold limit values (TLVs), that MSDS's universally reference the current version of ACGIH TLV's. This action could require mine operators to list two or more conflicting values for each substance which will unnecessary confuse miners and require additional paperwork for mine operators with no commensurate safety benefit. We see this as being a very difficult requirement for our members to implement on their respective worksites.

Subpart H- Trade Secrets
The Society strongly objects to MSHA's decision to include industrial hygienists but to exclude safety professionals from the definition of a Health Professional (Table 47.91). If MSHA is going to include industrial hygienists under this definition, then it is imperative that safety professionals also be included because these individuals also serve as consultant to mining companies, labor organizations and health facilities. MSHA makes the generalization that a safety professional will never need such information because he/she is on site and thus will already have access to it. MSHA misses the point that the safety professional may not be on staff (many are independent consultants) and consequently would need access to information in the same manner as that given to industrial hygienists and the other safety and health-related disciplines cited in the interim final standard.

We have included our most current demographic study of safety professionals, and it reveals that industrial hygienists and safety professionals are fundamentally equivalent in regard to training, background, education, and certification status. Perhaps MSHA should consider reviewing the level of professional safety and industrial hygiene competence required to perform these functions. If MSHA does choose to review the issue of competence, we point out that ASSE is the secretariat for the American National Standard, Z590 Criteria for Establishing Levels of Competence in the Safety Profession. We suggest that the Agency consider using the standard as a model for evaluating professional development programs for safety and health professionals working with HazCom and other safety-related issues.

MSHA needs to recognize in the final rule that safety professionals are included, and their level of professionalism, knowledge, and expertise is equivalent to industrial hygienists. To correct this shortcoming in the rule, we suggest the following edit to Table 47.91, 65 Fed. Reg. 59103:

Health Professional - A physician, nurse, physician's assistant, emergency medical technician, industrial hygienist, safety professional, toxicologist, epidemiologist, or other person qualified to provide medical or occupational health services.

We understand from MSHA staffers, the Agency originally considered including safety professionals or industrial hygienists with appropriate certification. If MSHA resumes consideration of this issue, ASSE strongly suggests that accredited certification bodies should be specifically cited. The ASSE Model Professional Recognition Act includes any professional safety certification body that is accredited by either the National Commission on Certifying Agencies (NCAA) or the Council of Engineering and Scientific Specialty Boards (CESB).

We also point out that ASSE serves as Registrar of the National Registry of Safety Professionals and Other Registrants. During the past several years, federal and state legislators, private sector business leaders, professional safety organizations, and administrators of regulatory agencies throughout the nation have debated safety and health issues. The central issue primarily focuses upon and galvanizes around those who deliver or provide such services, the safety professional. These discussions have focused primarily on those who deliver or provide such services, and have invariably addressed their competencies, credentials, education, experience, and continuous professional development. The objective of The National Registry of Safety Professionals and Other Registrants is to set safety professionals and other registrants apart from others working in the field. The information in the Registry, which can be sorted in various ways, offers practical benefits to various public and private officials and organizations.

We suggest that it would be good policy for MSHA to consider recognizing safety professionals registered with the National Registry as being competent to participate in the trade secrets aspects of any HazCom Standard. We think such recognition will enhance safety professional competence and can serve as a model for sound future public policy.

ASSE believes that MSHA omitted reference to safety professionals due to a simple oversight, and the entire situation can be easily remedied with the clarifications recommended above. Inclusion of safety professionals in MSHA's HazCom standard makes sense from an economic, professional, public and worker protection perspective.

ASSE looks forward to working with MSHA on these issues. Our hope is that we can resolve our concerns in a manner helpful to MSHA and safety professionals. We suggest that a clarification of the issues we discussed herein will benefit MSHA, safety professionals, and most importantly the mining workforce, which we are dedicated to protecting.

Sincerely,

Samuel H. Gualardo, CSP
ASSE President, 2000-2001

Copy to: ASSE Board of Directors
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