October 16, 2001

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

By Facsimile (703-235-5551) and U.S. Mail
MSHA HAZCOM RULE - 30 CFR PART 47

Dear Mr. Meyers:

The American Society of Safety Engineers (ASSE) offers the following comment concerning the reopened Mine Safety and Health Administration HazCom Interim Final Rule pursuant to the notice published in the Federal Register on August 28, 2001, 66 Fed. Reg. 45167-45169.

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 more than 30,000 dedicated safety and health professionals. ASSE's membership includes Certified Safety Professionals, Certified Industrial Hygienists, Certified Mine Safety Professionals, Professional Engineers, ergonomists, academicians, fire protection engineers, system safety experts, health professionals and an impressive collection of other disciplines. We pride ourselves on our dedication to excellence, expertise and commitment to the protection of people, property and the environment worldwide.

ASSE serves as Secretariat of eight (8) American National Standards Institute (ANSI) Committees that develop safety and health standards used by private sector organizations and state and federal governmental agencies, including MSHA and OSHA. ASSE members sit on over forty (40) additional standards development committees, and the Society sponsors educational sessions on standards development. The Society also has thirteen (13) practice specialties including Mining, Construction, 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. ASSE also has 149 chapters, 56 sections, and 64 student sections.

Need for a MSHA HazCom Standard

ASSE agrees that there is a need to protect workers from exposure to hazardous chemicals. The Society historically has supported the direction mandated in OSHA's Hazard Communication Standard (HCS) through the actions of our members, public comments, training initiatives and professional development activities. ASSE questions, however, whether the examples included in MSHA's original interim standard exemplify injuries and illnesses that would not already be addressed by other codified MSHA standards (e.g., Part 46 and Part 48 training; container and hazard labeling requirements in 56/57.16004, 56/57.20011 and 56/57.20012; and general PPE mandates) were those standards fully enforced.

Therefore, as part of its regulatory impact analysis for any modified HazCom rule, MSHA should specifically delineate which injuries and illnesses are now occurring that would not otherwise be prevented by adherence to existing regulations and standards, or are not otherwise prevented under the many state right-to-know programs applicable at mine sites across the US. By law, MSHA must comply fully with the requirements of the Small Business Regulatory Enforcement Fairness Act especially when -- as here -- the majority of regulated entities fall within the Small Business Administration's definition of "small business."

Moreover, MSHA failed to perform any meaningful update of its analysis, which was conducted when the original rule was proposed in 1990. The agency should use the reopening of this rulemaking to provide legitimate data on costs for each affected mining sector. While not advocating a strict cost/benefit analysis, ASSE does question whether the proposed rule will impose significant expense on mine operators without commensurate safety enhancement. If this is the case, the proposal would divert resources from other safety and health initiatives that could lead to meaningful enhancement of workplace conditions.

MSHA Must Not Impede the United States' Involvement in Global Harmonization Efforts

Additionally, MSHA's interim final rule is inappropriate because of the federal government's involvement in the massive Global Harmonization System (GHS) project concerning hazard communication. This project is under the stewardship of the US Occupational Safety and Health Administration (OSHA) with participation from agencies such as EPA, FDA and others. MSHA should take part in this international initiative if it is not already included. It would be counter-productive for MSHA to adopt its own Hazard Communication System -- particularly one that differs substantively from that of OSHA -- at a time when this issue is being looked at from an international perspective for the purpose of assisting US companies with global competitiveness and conformity.

ASSE suggests that MSHA suspend its rulemaking efforts to avoid an inadvertent adverse affect on the government's negotiating abilities in this area. A rational public policy approach would be for MSHA to wait until the GHS effort is concluded before adopting a HazCom rule if such a rule is warranted at all in light of MSHA's existing regulations.

The Society is also concerned that safety professionals will be responsible for implementing both the MSHA and the current OSHA HCS when the mining proposal differs from the OSHA HCS in several key respects. At the very least, confusion and unnecessary costs will result. MSHA should take the position that, if a company's HazCom program and their MSDSs comply with the OSHA rule, the company will not receive any MSHA adverse enforcement action. This is especially appropriate because MSHA and OSHA are agencies both within the US Department of Labor. In fact, this is an excellent opportunity for both agencies to work together to develop a single comprehensive HazCom document once the GHS initiative is completed.

Training Aspects of the Standard

This interim final rule contains significant training requirements that should be integrated with existing Part 46 and/or Part 48 training mandates to minimize repetition, unnecessary expense and unwarranted paperwork requirements. This is appropriate because the stand-alone training regulations specifically require mine operators to provide training on hazards encountered by the miner and to cover occupational health issues.

ASSE also suggests that the preamble to any final rule, if issued, reference the ANSI Z490.1 Standard, Criteria for Accepted Practices in Safety, Health and Environmental Training. Under the Technology Transfer Act of 1995 (Public Law 104-113) and the Office of Management Budget (OMB) Circular A-119, MSHA is required to consider existing voluntary consensus standards and, where appropriate, include them in any relevant rulemaking activity. Thus, we strongly suggest that the ANSI Z490.1 Standard be cited by reference in the MSHA standard as a viable document to review/refer to upon its completion. The Z490.1 Standard grew out of the recognized need for improvement in safety, health and environmental training 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 and others from the mining community have provided input on the development of this standard.

Labeling and MSDS Requirements

As drafted, the interim final rule mandates specific requirements for container labels. We ask that MSHA review the existing American National Standard Z535 series since these existing standards address many of the issues MSHA is raising and because 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 cite automatically 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. The reopening of this rulemaking provides an excellent opportunity to address this possible oversight.

Similarly, 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. In fact, MSHA is considering departing from its interim final rule and mandating different information from that contained on OSHA-required MSDSs (e.g., with respect to listing of ACGIH threshold limit values). If another rule is published, MSHA must present an explanation as to why MSHA did not cite these voluntary national consensus standards for inclusion and why mine operators will have to have unique MSDSs. The envisioned change will make compliance infinitely more difficult by preventing mine operators from utilizing the many MSDS computerized/fax services now applicable.

To provide a general overview of the issues raised above, we are including the ASSE position statement, entitled The Role of Consensus Standards in Occupational Safety and Health, with these comments and ask that the statement become part of the administrative record. 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 and NHTSA should utilize these consensus standards because they provide an efficient and effective alternative to traditional public sector rule making. ASSE advocates initiatives to encourage the utilization of national consensus standards to meet the demand for increased regulation and legislation in occupational safety and health.

In its original proposal and interim rule, MSHA indicated that mine operators would be able to utilize "off the shelf" hazard communication tools and programs and that this would reduce the associated implementation costs. In the published rule, however, MSHA departed from uniformity with OSHA and now suggests that it may incorporate even further differences with the long-standing OSHA requirements. In the interest of uniformity, mine operators should not be required to alter MSDSs in order to include the MSHA permissible exposure limits for various chemical substances or to incorporate versions of documents in a manner differing from that employed by OSHA. Moreover, altering the content of MSDSs that have been created by others with expert knowledge by an employer, even when mandated by MSHA, creates liability concerns for both employers and product manufacturers.

Subpart H- Trade Secrets

In ASSE's prior comments, we strongly objected to MSHA's decision to include industrial hygienists but to exclude safety professionals from the definition of a Health Professional (Table 47.91). To date, MSHA has not responded to this concern. It is imperative that safety professionals also be included because these individuals frequently serve as consultants to mining companies, labor organizations and health facilities. MSHA makes the generalization that a safety professional will never need such information because she or he is on site and, thus, will already have access to it. In reality, many safety professionals are independent consultants and are not always on site. Such consultants need access to information in the same manner as industrial hygienists and the other safety and health-related disciplines cited in the interim final standard. 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.
Inclusion of safety professionals in MSHA's HazCom standard makes sense from an economic, professional, and public and worker protection perspective.

Additional Changes

Recently, in conjunction with the scheduled public hearings on the reopened HazCom interim final rule, MSHA outlined some further changes it was considering. ASSE makes the following observations on several of these provisions:

  • Deletion of the ACGIH "incorporation by reference" - Although ASSE does not generally support inclusion of a "moving target" for compliance purposes by referencing ever-changing versions of publications, the Society is concerned that the change being considered -- substituting the 2001 version of the ACGIH booklet -- could require mine operators to manufacture their own MSDSs for each covered product on the mine site. Mine operators should be free to utilize either the 2001 version or the "current" version in preparing their own MSDSs for mine products that are sold to downstream MSHA or OSHA-regulated employers.

  • Under the OSHA rule, all MSDSs are updated by reference to the "current" ACGIH values. These are the MSDSs that will be available to most safety professionals through on-lines services and from manufacturers. MSHA should accept such MSDSs under this standard, and, in fact, has suggested that this may be an acceptable alternative compliance method. ASSE supports this approach.

  • ASSE supports revising the definition of "health hazard" to bring the standard into conformity with its OSHA counterpart's language.

  • ASSE supports any efforts by MSHA to develop compliance assistance tools for mine operators and pledges its support in this effort. ASSE encourages MSHA to consider that materials may be needed in various languages to meet the needs of a diverse mining workforce.

Conclusion

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 we are all dedicated to protecting.

Sincerely,

M.E. "Eddie" Greer, CSP
ASSE President, 2001-2002

Copy to:

ASSE Board of Directors
ASSE Council on Professional Affairs, Mining Practice Specialty
ASSE Council on Practices and Standards
ASSE Governmental Affairs Committee
ASSE Contact List

EG/CORRS1510
Encl.

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