OSHA estimates that compliance with the GHS ruling will cost more than $110 million and will represent about 27 percent of compliance costs for the chemical manufacturing industry. But Jeff Leiter, general counsel of the Petroleum Packaging Council, said this estimate is probably well off the mark. For example, he said, the agency figures that it will cost about $600 per data sheet, which is probably a low estimate.
In a presentation to the Petroleum Packaging Council in St. Augustine, Fla., in March, Leiter said, The lubricants industry will either have to reclassify their mixtures or do actual testing. So its going to become an expensive proposition. My fear is that the true cost of implementation hasnt really set in.
Leiter also contends that compliance is not as black-and-white as OSHA indicated when they issued the final rule in March 2012 to align its Hazard Communication Standard with the GHS. More commonly known as HCS 2012, or the GHS ruling, the standard aims to bring U.S. workplaces and products into conformance with the internationally adopted Globally Harmonized System of Classification and Labeling of Chemicals. Implementation of the GHS ruling involves not only OSHA but also several other federal agencies, each with its own objectives.
The Occupational Health and Safety Administration is concerned with controlling workplace chemicals, and implementation of the rule is in progress. The Environmental Protection Agency, which currently is concerned with pesticides, is studying whether it should do any additional things to implement GHS as part of its effort to update the Toxic Substances Control Act.
The Consumer Product Safety Commission is contemplating rulemaking, but has made no progress yet. Finally, the Department of Transportation is reviewing its regulations and is in the process of implementing changes.
Leiter emphasized that the training deadline is the most pressing issue. Employers must train employees about the new label elements and safety data sheet format by December 1, 2013. Training must cover the differences between chemical and physical hazards, as well as new labeling requirements, including the pictograms, signal words, hazard statements, and precautionary statements that will be used.
Leiter then addressed the EPAs reform of TSCA, which was enacted in 1976 and authorizes EPA to review and regulate chemicals in commerce. He said, Over the years, I think its safe to say that EPAs confidence in the robustness of that statute to do its job has eroded. This has created incentive at the state level to create their own chemical management programs, such as Californias Green Chemistry rule and Prop 65 regulation.
There is general acceptance that TSCA needs updating to reflect improvements in science and technology, as well as public expectations of government oversight of the marketplace with respect to chemicals, Leiter said. However, while there is agreement that TSCA needs to be reformed, there is lack of consensus on how to reform it.
EPA has undertaken a number of steps in five areas: chemical action plans, dealing with confidential business information, chemical data reporting, chemical prioritization and risk assessment. Under Europes REACH Program, the burden is on the manufacturer to prove that its substances are safe, said Leiter. However, in the U.S., EPA still has the burden of making that determination.
Through changes in various rules, EPA is trying to develop more current and more robust data. Also, EPA is reviewing many substances listed on the Chemical Abstract Service, withdrawing them and requiring manufacturers to submit new data such as new premanufacturing notifications, Leiter added.
In the absence of any legislative changes, EPA will continue to move forward with new rulemaking in terms of changing testing requirements, requiring more robust reporting under the Chemical Data Rule and, significantly, the loss of confidential business information, he said. For instance, EPA recently withdrew confidential business information protection for thousands of products.
In response, industry groups are looking to the legislative process to give them some relief. However, Leiter said, there has been little progress on that front. For example, the Safe Chemicals Act proposed by Sen. Frank Lautenberg (D-N.J.) failed to pass the Senate. Sen. David Vitter (R-La.) plans to introduce several piecemeal reform bills. However, Leiter estimates the likelihood of passage at about 50 percent.
He finished by saying that the states want some certainty on the issue of chemical safety. Therefore, they are putting pressure on Congress and the EPA to get something done. However, Leiter concluded, even if Congress takes no action, EPA feels it has enough authority under existing statutes to move forward.
Leiter, principal of Leiter & Cramer PLLC in Washington D.C., is also general counsel of the Independent Lubricant Manufacturers Association.