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From OSHA: A Paperwork Nightmare?

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Phasing in OSHAs proposed new chemical hazard communication rules by industry segments, and providing more time for downstream businesses to comply, would help smooth its implementation, Independent Lubricant Manufacturers Association President Cathy Novak told a recent OSHA public hearing.

The Occupational Safety & Health Administration held informal public hearings March 2 to 5 in Washington D.C., on its proposal to revise its decades-old Hazard Communication Standard to align with a globally harmonized standard (GHS).

The original Hazard Communication Standard, promulgated in 1983, created todays well-known system of material safety data sheets and warning labels that communicate chemical hazards to workers, transporters and users. Since its adoption, says OSHA Deputy Assistant of Labor Jordan Barab, U.S. workplaces have seen acute injuries and illnesses related to chemicals drop by 42 percent.

Despite those gains, its time now to rethink that standard, OSHA officials say. They point to Bureau of Labor Statistics data showing that workers still experienced 55,400 illnesses atributed to chemical exposures in 2007, more than one-third of which involved lost days from work.

So in a proposed rule-making published Sept. 30 in the Federal Register (29 CFR Parts 1910, 1915 and 1926), OSHA suggested modifying the existing Hazard Communication Standard to conform with the United Nations Globally Harmonized System of Classification and Labeling of Chemicals. The agency said the proposed modifications will improve the quality and consistency of information provided to employers and employees regarding chemical hazards and associated protective measures. It also stated that these changes could be accomplished with minimal cost to businesses, small or large.

Novak, who is technical services manager and product formulator for Pontiac, Mich.-based Eastern Oil Co., countered that optimistic estimate with an eye-opening look at what compliance with GHS actually will cost. She spoke at the hearing on March 4, joining representatives of chemical companies, trade associations, engineering and safety groups, labor unions, hygienists and others in submitting comments. In particular, she described the crushing economic impact that hasty adoption of GHS could have on small businesses, and argued strongly for a more measured, phased-in approach.

If this GHS change is implemented across the board for everyone at once, it will cause pandemonium, confusion and the cost burden to small business will be catastrophic in this economy, Novak stated. Accordingly, the GHS compliance schedule for product formulators and other downstream users must be phased in over a number of years, after the chemical manufacturing industrys GHS conversion is substantially complete.

Revision Long Overdue

Novak stressed that she and her company agree with OSHAs goals for GHS. Let me begin by saying that both my company and our industry support OSHAs rulemaking to update the Hazard communication standard and to make it consistent with GHS, she told the panel. A harmonization of hazard definitions and a uniform system of classification is long overdue.

The problem, she continued, is that OSHAs proposed rulemaking treats everyone subject to the proposed regulations as if they were all on the same playing field at the same time – chemical manufacturers, product formulators and end users alike. A more realistic approach would be to phase in the rules so downstream businesses have additional time to comply. The phase-in could start with the chemical manufacturers and end with the formulators of finished products, Novak urged.

She noted that when the European Union tackled the issue, its Classification and Labeling effort extended the compliance deadline three years for formulators. While a three-year phase-in may be workable, small businesses here in the U.S. will need at least five years to fully implement this program, she stated.

Novak recounted an ILMA survey that asked member companies how long they thought it would take and how much it would cost them to become GHS compliant. The average cost per safety data sheet was about $3,000, the survey found, and a realistic time was about five years on average.

The initial OSHA estimates were significantly lower, so I think they [OSHA] were a little taken aback by that, Novak afterwards related. Her preliminary research indicated the software required to create the new safety data sheets alone would cost more than $20,000, she told the OSHA panel.

Supply Chain Reaction

In her testimony, Novak described a semi-synthetic machining fluid she had developed at Eastern Oil. It is comprised of 15 different chemical components, one of which is water. When the new GHS regulations go into effect, I will have to obtain 14 new MSDS from 14 different vendors, Novak told the OSHA panel. Each of these vendors will need to either create a new MSDS or, if it is a compounded additive, go to those various vendors for each of the component raw material in that additive, and write a new MSDS using their suppliers latest GHS-compliant version.

Can you see all the dominoes falling into place in one timely fashion? Neither can I.

Eastern Oil has more than 2,000 manufactured products which contain, on average, four components, Novak said. That would require the company to collect more than 6,000 GHS-compliant raw material safety data sheets to rewrite all of its 2,000 MSDS. The company also rebrands or resells an additional 2,000 products, which would further multiply the load of paperwork.

Novak estimated the work created by the compliance project would require at least one full-time person several years to accomplish – and then only if all the suppliers had their compliance work done before her company got started on it. Requiring the simultaneous compliance by both the raw material manufacturers and the finished product manufacturers is just not feasible, Novak emphasized. She said that the panel members thanked her and each talked to her independently afterwards and asked more questions. There was no level of antagonism, it was mostly inquiry, she reported. I felt that the hearing was a good opportunity, and I had performed a service for the small, downstream compounder/blenders that will be impacted quite a bit.

Double Exposure for Biocides?

Another issue related to GHS and lubricants was raised by Adrian Krygsman, director of product registration for New Jersey-based Troy Corp. Appearing at the Washington hearing on behalf of the American Chemistry Councils Biocides Panel, he spoke about the need to clarify whether OSHA or EPAs regulations take precedence when they overlap, and to provide alternatives or exemptions for pesticide products to avoid conflicts in such cases. Krygsman pointed out that EPA has not yet adopted GHS for pesticide products, which potentially sets manufacturers on a collision course for one agency or the other.

EPA registers all pesticides and pesticide products under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The agency considers disinfectants, antimicrobials and antibacterial products to be pesticides. Krygsman noted that biocides used in metalworking fluids fall under FIFRA.

The OSHA-proposed rule on GHS would usurp the jurisdiction of EPA and would result in an irresolvable conflict for pesticide registrants, Krygsman told the hearing. Registrants could not be in compliance with both the OSHA standard and FIFRA. They would be subject to enforcement action because of this irresolvable conflict, resulting in potential fines for product mis-branding.

Additional costs would occur from the need to maintain different labels to address both EPA FIFRA-required labeling and OSHA GHS labeling, he added.

The acknowledgement by OSHA that EPA controls the content of the label on the container is not sufficient to address these very serious issues, Krygsman stressed. The panel believes that the two agencies must cooperate in an effort to avoid this regulatory jurisdictional dilemma, and to assure pesticide registrations are provided a path that enables them to be compliant with all applicable regulations of both programs.

OSHA also held informal public hearings for its proposed rulemaking on March 31 in Pittsburgh. A third hearing, slated for April 13 in Los Angeles, was cancelled due to a low level of participation in that region.

For more on OSHAs proposed rule-making on GHS, visit www.osha.gov.

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