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Standards: The big splash is two years away (5/28)

May 26, 2009
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The year 2011 will probably see the most standards-setting activity by the next OSHA chief. OSHA’s new boss won’t officially take office most likely until this fall, and most of 2010 will go to putting together a leadership team, setting a course, and getting the lay of the agency land. By 2012, the agency will be operating under the unofficial rules of election-year conduct, which basically mean do nothing to screw up the president’s reelection.

So advance notices of proposed rulemaking could come in 2010, with actual proposals in 2011. Final rules, particularly for complex and contested issues (such as a safety and health program management standard) would hinge on President Obama’s reelection and come sometime after 2012.

Already in the pipeline: Hearings recently were held on OSHA’s proposed update of cranes and derricks regulations. Given the catastrophes involving cranes toppling over in Manhattan in the recent past, the agency will be hard-pressed not to push ahead with a final standard here, and quickly. The same pressure, again due to negative publicity, applies to regulating occupational exposure to food flavorings containing diacetyl.

Coming soon: A caveat: in the world of OSHA standards-setting, “soon” is a rubbery term that can be stretched over years. Standards have a notoriously lengthy gestation period at the agency. That should change to a degree with a Department of Labor regime more supportive of organized labor’s standards goals, but small business advocacy review panels, comment periods, hearings, post-hearing comment periods and the Obama administration’s emphasis on transparency in rulemaking processes all will slow down standards writing.

Also, the current economic crisis, which could drag on who knows how long, will certainly act as a brake on standards-setting and the associated compliance cost burden.

What you can expect are more announcements of intentions to regulate in specific cases. To issue an advanced notice of proposed rulemaking is a rather politically painless move. It draw media, professional, and employer attention to an issue before OSHA hunkers down for the time-consuming, devil-in-the-details work of writing a standard that is technologically and economically feasible, meets cost-benefit requirements, and then defends its proposal against all comers.

Prediction: Within the next 12 months, OSHA will make announcements concerning standards-setting actions for silica exposures, beryllium exposures, confined spaces in construction, global harmonization of MSDSsand hearing conservation in construction.

Standards update

In 2003, the United Nations adopted the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). Countries are now adopting the GHS into their national regulatory systems. OSHA is considering modifying its hazard communication standard to make it consistent with the GHS. This would involve changing the criteria for classifying health and physical hazards, adopting standardized labeling requirements, and requiring a standardized order of information for safety data sheets.

In the most-recent regulatory agenda, issued last week, OSHA detailed this Statement of Need: “Multiple sets of requirements for labels and safety data sheets present a compliance burden for U.S. manufacturers, distributors, and transports involved in international trade. Adoption of the GHS would facilitate international trade in chemicals, reduce the burdens caused by having to comply with differing requirements for the same product, and allow companies that have not had the resources to deal with those burdens to be involved in international trade.

“This is particularly important for small producers who may be precluded currently from international trade because of the compliance resources required to address the extensive regulatory requirements for classification and labeling of chemicals.

“Thus every producer is likely to experience some benefits from domestic harmonization, in addition to the benefits that will accrue to producers involved in international trade.

“Additionally, comprehensibility of hazard information will be enhanced as the GHS will: (1) provide consistent information and definitions for hazardous chemicals; (2) address stakeholder concerns regarding the need for a standardized format for material safety data sheets; and (3) increase understanding by using standardized pictograms and harmonized hazard statements.

Several nations, including European Union, have adopted the GHS with implementation schedule through 2015. U.S. manufacturers, employers, and employees will be at a disadvantage in the event that our system of hazard communication is not compliant with the GHS.

The new OSHA regime has scheduled a notice of proposed rulemaking revising the hazcom standard for October, 2009.

OSHA detailed the need for a silica dust standard in its latest regulatory agenda issued last week. The next step in the rulemaking process is to initiate a peer review of health effects and risk assessment set for June, 2009.

OSHA’s statement of need: “Over 2 million workers are exposed to crystalline silica dust in general industry, construction, and maritime industries. Industries that could be particularly affected by a standard for crystalline silica include: Foundries, industries that have abrasive blasting operations, paint manufacture, glass and concrete product manufacture, brick making, china and pottery manufacture, manufacture of plumbing fixtures, and many construction activities including highway repair, masonry, concrete work, rock drilling, and tuckpointing.

“The seriousness of the health hazards associated with silica exposure is demonstrated by the fatalities and disabling illnesses that continue to occur; between 1990 and 1996, 200 to 300 deaths per year are known to have occurred where silicosis was identified on death certificates as an underlying or contributing cause of death. It is likely that many more cases have occurred where silicosis went undetected.

“In addition, the International Agency for Research on Cancer (IARC) has designated crystalline silica as a known human carcinogen. Exposure to crystalline silica has also been associated with an increased risk of developing tuberculosis and other nonmalignant respiratory diseases, as well as renal and autoimmune respiratory diseases.

“Exposure studies and OSHA enforcement data indicate that some workers continue to be exposed to levels of crystalline silica far in excess of current exposure limits. Congress has included compensation of silicosis victims on Federal nuclear testing sites in the Energy Employees' Occupational Illness Compensation Program Act of 2000.

“There is a particular need for the agency to modernize its exposure limits for construction and maritime workers, and to address some specific issues that will need to be resolved to propose a comprehensive standard.

“The legal basis for the proposed rule is a preliminary determination that workers are exposed to a significant risk of silicosis and other serious disease and that rulemaking is needed to substantially reduce the risk. In addition, the proposed rule will recognize that the PELs for construction and maritime are outdated and need to be revised to reflect current sampling and analytical technologies”

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