OSHA HazCom Hearing Today: What We'll Be Sayingby James Goodwin
Imagine opening your medicine cabinet, only to find that the warning and information labels on your over-the-counter medications no longer include dosing information. How would you know how much Benadryl to take or how much aspirin to give to your child? A provision in the Occupational Health and Safety Administration’s (OSHA) proposed rule modifying its Hazard Communication (HazCom) Standard threatens to deprive U.S. workers of similar safety information—information they depend upon ever day to protect themselves against the hazardous chemicals that they use in the workplace. CPR Board Member Sidney Shapiro and I have prepared testimony for a public hearing OSHA is holding today on the proposed rule, making the case that the provision is unnecessary and that it would likely leave workers more vulnerable to workplace hazards (full HazCom testimony).
As the name suggests OSHA’s HazCom Standard establishes a system for communicating hazards about dangerous chemicals to the workers who use them. The standard requires manufacturers to provide a “Safety Data Sheet” on each chemical they produce that explains what hazards the chemical might pose to human health or safety, and recommends steps that users of the chemical should take to avoid these hazards.
In this regard, these Safety Data Sheets are a lot like the warning and information labels on over-the-counter medication. Just as you might consult the label before taking over-the-counter medication, workers would consult the relevant Safety Data Sheet before using a potentially dangerous chemical so that they know what precautions to take while using the chemical (For more information about the HazCom standard, see here.)
The idea is to align the existing HazCom standard with the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals (GHS), a universal system for developing such Safety Data Sheets. The idea was to avoid the confusion that might arise when workers begin consulting different types of Safety Data Sheets developed by chemical producers in different countries under different hazard communication programs. Significantly, the GHS only creates a framework for developing Safety Data Sheets; it is intended to be flexible enough that countries can adapt this framework into their existing hazard communication programs.
On the whole, aligning OSHA’s HazCom Standard with the GHS is a good idea; after all, workers can’t use the information in Safety Data Sheets to protect themselves if they find it confusing. The problem is that, as part of this effort, OSHA plans to eliminate a longstanding requirement for chemical manufacturers to include two pieces of information about the health hazards of their chemicals: the American Conference of Governmental Industrial Hygienists’ (ACGIH) Threshold Limit Values (TLVs) and the International Agency for Research on Cancer’s (IARC) cancer hazard evaluations. TLVs provide a quantitative estimate of what level of exposure to a certain chemical might pose a health danger—how many parts per billion, for example. The IARC cancer hazard evaluations simply classify chemicals as to whether they pose any cancer risk to humans.
In our testimony, we argue that removing TLVs and IARC cancer hazard evaluations runs counter to the goal providing workers with information so that they can take steps to protect themselves.
We also make the case that removing TLVs and IARC cancer hazard evaluations is unnecessary for harmonizing OSHA’s HazCom Standard with the GHS, since the GHS is flexible enough for regulatory agencies like OSHA to adapt it to their needs. In fact, because the goal of the GHS is to provide workers with adequate safety information, it is better for OSHA to require more information in its harmonized Safety Data Sheets than less.
Regulatory foes have made the situation somewhat more complicated, however, by using OSHA’s proposed rule as an opportunity to trumpet one of their favorite tools for blocking effective regulatory action: the Information Quality Act (IQA). On its face, the IQA looks like a worthy good government reform: It requires agencies like OSHA to ensure and maximize the quality of information that they disseminate, and to establish an error-correction process. In reality, though, the IQA was intended to give regulated entities a new tool for short-circuiting the regulatory process. (The IQA—all two paragraphs of it—was buried in a massive appropriations bill at the behest of Jim Tozzi, a former OMB official who runs the corporate-sponsored Center for Regulatory Effectiveness.)
The IQA allows regulated entities the chance to challenge the science that agencies rely upon for health, safety, and environmental regulations. Almost invariably, that science involves some degree of uncertainty. That, of course, is the nature of science, ever open to further data. It’s why we refer to the “theory of gravity,” and why Congress, in its various health, safety, and environmental statutes, directed the agencies to regulate even in the face of uncertainty. Moreover, “uncertainty” is not the same thing as “poor quality.” Nevertheless, regulated entities have become pretty good at conflating these two issues, as part of their broader effort of manufacturing doubt about the science undergirding important regulatory protections. The upshot is that regulatory agencies have to dedicate their limited resources toward defeating meritless IQA challenges against their regulations, rather than getting on with the important work of protecting people and the environment.
In the case of OSHA’s HazCom Standard, regulatory foes have sought to give the agency another reason to no longer require the inclusion of TLVs and IARC cancer hazard evaluations on Safety Data Sheets: They claim that the inclusion of this information violates the IQA. In particular, they argue that this information has not been individually peer-reviewed, and thus could be challenged under OSHA’s error-correction process. Given OSHA’s historic lack of resources, such challenges could stop the HazCom Standard in its tracks.
In our testimony, we explain to OSHA why it has nothing to fear if it decides to continue requiring the inclusion of TLVs and IARC cancer hazard evaluations in Safety Data Sheets: The IQA does not apply to programs like the HazCom Standard or to information like TLVs and IARC cancer hazard evaluations.
We'll keep an eye on OSHA’s proposed amendments to the HazCom standard to ensure that they do not weaken crucial protections for workers, and watch for any future attempts to use the IQA to disrupt the important work of our protector agencies.