March/April 1989
OSHA, EPA, and state and local legislatures have formulated programs to allow public and employee access to information on potential hazards in the community and in the workplace. While bred of noble objectives, these programs can be complex and confusing for employers. What substances qualify as hazardous? What degree of exposure constitutes a hazard? How do you keep track of all these substances? Whom do you notify of what, and how? This article sorts out the fundamentals of Hazard Communication and Right-to-Know.
By David M. Wassum
David M. Wassum is director of risk management at the Institute of Scrap Recycling Industries, Washington, D.C.
The term "right-to-know" has become a generic description for various federal, state, and local' programs to increase the distribution of information about chemical hazards. Although the programs have become increasingly interrelated, they are still generally categorized as either "workplace" or "community" right-to-know requirements. The objective of all these programs is to provide information, to employees as well as to the public at large. The premise is that if people are given information about potential chemical exposures, they will be able to make prudent decisions to protect themselves. The unspoken expectation is that employees and citizens, once made aware of chemical exposures, will press employers and businesses to improve workplace conditions and reduce chemical hazards.
The Tortuous Path to Right-to-Know in the Workplace
The Occupational Safety and Health Administration (OSHA) Hazard Communication Standard culminated nearly a decade's efforts to develop a comprehensive regulation for educating employees about workplace hazards. In 1975, soon after the Occupational Safety and Health Act was implemented, an OSHA advisory committee recommended that the agency develop a generic standard to provide hazard information to employees. For the next five years, OSHA collected data and sought information on how such a standard should be structured. Then in 1981, in the waning days of the Carter administration, a labeling standard was proposed that would have required manufacturers to provide extensive information about the hazards of their products. Users of such products would have been responsible for labeling any containers, piping, or other receptacles containing hazardous materials.
Soon after issuance, however, the proposed standard was retracted by the new Reagan administration, and the hazard communication issue was reevaluated by OSHA for two more years. In November 1983 a revised standard was issued, and OSHA’s workplace right-to-know program finally became effective in November 1985. Initially, the standard's requirements applied primarily to manufacturing employers. However, as a result of a legal challenge, OSHA was ordered to expand the scope of the standard to include virtually all employers. The expanded standard became effective May 23, 1988.
Minor changes in the standard have since been proposed by OSHA, and a new legal challenge to the standard itself has been mounted, primarily by the construction industry. Nevertheless, the basic framework of the OSHA program appears well established at present.
Right-to-Know Moves Beyond the Workplace
While attention focused on OSHA’s workplace efforts, many states and local communities, concerned about OSHA’s laggard pace in issuing a standard, began passing their own right-to-know laws. Many of these laws were essentially hybrids: while some requirements addressed workplace issues, others were oriented toward the community at large.
The community right-to-know movement received a major impetus from the chemical disaster in Bhopal, India, in 1984. Subsequent chemical releases from plants in the U.S. created additional demands for action and, as a result, Congress enacted new legislation dealing with the problem. The result was the Emergency Planning and Community Right-to-Know Act of 1986. In simple terms, this law was written to assure that local governments are aware of toxic and dangerous chemicals in their communities and are prepared for chemical emergencies.
Complying With the OSHA Workplace Standard
The OSHA standard imposes three broad requirements on employers: identify materials within the workplace that are hazardous or potentially hazardous, obtain information about those hazards, and provide this information to employees. To comply with the OSHA rule, employers must generally perform seven tasks.
First, the employer must develop an inventory of "hazardous chemicals" present in the workplace. The term "hazardous chemical" is interpreted very broadly under the OSHA standard, and potentially applies to an extensive range of substances. More than 2,000 "hazardous chemicals" are included on various lists specified in the standard, and some estimates place more than 50,000 substances in all within the definition. In sum, virtually any chemical substance could be considered a "hazardous chemical" under the OSHA definition. Employers must consider not only chemical substances they purchase (such as acids, solvents, and fuels), but also substances generated during workplace operations (such as fumes from melting or cutting). Each chemical substance identified in the workplace should then be checked to determine whether or not it is a "hazardous chemical."
The second step is to analyze potential workplace exposures to each of the identified "hazardous chemicals." The standard generally requires action by the employer if any exposure is foreseeable. Thus, even though employee exposure to a particular substance might occur only under emergency conditions (a fire, for example), if that exposure is foreseeable the substance must be included in the company's hazard communication program.
After completion of the first two steps, the employer must attempt to obtain a material safety data sheet (MSDS) for each of the "hazardous chemicals" identified. Compilation of these MSDSs is probably the single most important step in complying with the standard. The employer must either obtain relevant MSDSs from the suppliers of the "hazardous chemicals" or from a commercial vendor of MSDSs, or create the documents inhouse. MSDSs are designed to provide detailed information about a "hazardous chemical" to the users of that substance, including employees of the company manufacturing the substance and downstream purchasers of the substance and their employees.
Employers also must give past and present employees access to information about workplace exposures to hazardous substances and about the results of any such exposures. This right to information extends to employees' personal representatives, such as physicians, attorneys, and union representatives. To meet its legal obligations, an employer should designate an individual to coordinate requests for such information and preplan a procedure for handling those requests.
The major component of the OSHA standard, and the key to its success in reducing workplace chemical-related illnesses, is employee training. Employees must be informed of their exposures to potentially hazardous substances in the workplace, the possible hazards of those exposures, and the methods available to reduce potential hazards. Employees also must be informed of their rights under various laws and regulations. Training must be provided when an employee is first assigned to an area where "hazardous chemicals" are present, and also whenever new potential hazards are introduced into the work area. The OSHA standard requires employers to develop written programs describing how this training is to be provided.
To supplement training and other hazard information, employers also must assure that all containers of "hazardous chemicals" are labeled. Workplace containers must be marked with the identity of the "hazardous chemical" and with appropriate hazard warnings. Label information must be cross-referenced to information on the MSDS for the same substance, so that employees can readily obtain the appropriate MSDS. In most cases, containers of purchased materials will already be marked with appropriate labels. In such cases, employers have no further responsibility than to ensure that the existing labels are not removed or defaced.
The final requirement for employers under the OSHA standard is to provide hazard information to downstream purchasers of "hazardous chemicals" and to others who might be exposed to potential hazards. This requirement can be satisfied by providing the appropriate MSDS for each substance sold and by assuring that containers of those substances are appropriately labeled. In some cases, equivalent information also must be provided to other parties, such as contractors and OSHA representatives.
Although the OSHA Hazard Communication Standard has been in place for some time, many provisions have not yet been stringently enforced, particularly among nonmanufacturers. The delay results both from the complexity of the standard and from pending legal challenges. However, in response to Congressional complaints about inadequate enforcement of the standard, employers can expect the new administration to direct a high level of attention toward compliance with these requirements.
Community-Right-to-Know: Confusing Terminology, Conflicting Requirements
The workplace right-to-know program implemented by OSHA has been partially duplicated by the Environmental Protection Agency under the Emergency Planning and Community Right-to-Know Act. Initially, the law mandated establishment of various state and local organizations to collect information about hazardous materials and develop emergency action plans. Each state was required to organize a State Emergency Response Commission no later than April 17, 1987. One of the state commission's first duties was to designate local emergency planning districts "to facilitate preparation and implementation of emergency plans." Each local district was to have a Local Emergency Planning Committee established not later than August 17, 1987, and the planning committee was required to complete a local emergency plan not later than October 17, 1988. Each emergency plan was to identify all facilities in the district that use or store certain hazardous materials in designated quantities. Other facilities could be included if designated by the state commission.
The community right-to-know program applies to four categories of chemical hazards. The first type is "hazardous chemicals," as the term is defined by OSHA. As noted previously, this term may include more than 50,000 substances. The second type of material subject to community right-to-know rules is "hazardous substances." This term includes a list of approximately 700 substances. Next are "extremely hazardous substances," a list of more than 400 chemicals. Finally, the law includes requirements for more than 300 specifically listed "toxic chemicals." (Some substances are in more than one category.)
Attempts to differentiate between these terms can be confusing. However, the distinctions between different materials are important because of different reporting obligations for each. There are five primary reporting requirements under the community right-to-know rules. (These requirements are in addition to those specified for "hazardous substances" under the Comprehensive Environmental Response, Compensation, and Liability Act [Superfund].)
The first requirement is for "release reporting." Release of a reportable quantity (RQ) of any "hazardous substance" or any "extremely hazardous substance" must be reported immediately if any off-site exposure exists. Notification must be made to the National Response Center (for "hazardous substances" only) and to state and local emergency organizations. The state and local reports must be followed up by written reports about the incident. Reportable quantities have been established for each chemical subject to the requirement, and whenever this amount is released in a 24-hour period, notification must be provided. For example, the RQ for sulfuric acid is 1,000 pounds; in contrast, the RQ for lead (except in solid form) is 1 pound.
The second requirement under the community right-to-know program applies to any facility that contains a designated quantity of any "extremely hazardous substance." Such facilities were required to notify state and local emergency organizations about the substance(s) by May 1987, designate a "facility emergency response coordinator," and cooperate in the development of a local emergency plan.
The next requirement is to report the presence of any "hazardous chemicals" at a facility. Employers must submit a list of such chemicals, or copies of material safety data sheets, to the state and local emergency organizations and the local fire department. "Hazardous chemicals" must be reported if present in quantities of 10,000 pounds or greater (less if the chemical is an "extremely hazardous substance"). This reporting threshold is scheduled to drop in the future, possibly to zero pounds. Deadlines for submitting this information were October 1987 for manufacturing facilities (Standard Industrial Classification [SIC] 20-39) and September 24, 1988, for nonmanufacturers (all other SICs).
Related to this notification requirement is the submission of an annual inventory report concerning "hazardous chemicals." This report, using EPA’s "Tier I" or "Tier II" form, must be submitted annually, no later than March 1, reflecting the prior year's inventory of "hazardous chemicals" stored at the site. The report must be sent to the state and local emergency organizations and the local fire department. Manufacturers were required to submit their first reports in March 1988; nonmanufacturers will have to file their initial reports in March 1989.
The last, and potentially most burdensome, notification requirement is an annual report of "toxic chemical" releases. This requirement applies to any manufacturing facility (SIC 20-39) with a workforce of 10 or more employees that manufactures, processes, or uses any "toxic chemical" in threshold quantities. For manufacturing or processing, initial reporting thresholds are fairly high at 75,000 pounds, but they decrease in the third year of the program (1990) to 25,000 pounds. For chemicals that are "otherwise used," the threshold is 10,000 pounds. For each of these "toxic chemicals," the company must submit to EPA and the state a report ("Form R") that describes: the maximum amount of the chemical present during the prior year; the waste treatment or disposal method used for that chemical; and the estimated quantity of the chemical that entered the air, soil, or water from the facility. Essentially, a company must determine how much of the chemical entered its site as a raw material and how much left the site in its products, and then account for any difference. The first report was due July 1, 1988.
Significantly, the information submitted to EPA on these "toxic chemical" reports will be placed in a computerized data base accessible to the public. This public access, required by law, is expected to spur local citizen demands for greater control of chemical releases by industrial companies.
Violations of these new notification requirements can result in stiff potential penalties. These range from $10,000 per day, per chemical, for failure to report "hazardous chemicals" at a particular facility, to $25,000 per day, per chemical, for other reporting violations. In addition, willful failure to report releases from a facility could subject a company (or an individual) to criminal penalties of up to $500,000 and three years' imprisonment.
Confusion Over Preemption Issue
A major unresolved issue in the right-to-know area is the extent to which federal rules preempt differing state and local laws on the same subject. The OSHA Hazard Communication Standard explicitly states that it is intended "to preempt any legal requirement of a state, or political subdivision of a state, pertaining to the subject." Although the courts generally have upheld this preemptive effect, the extent of preemption may be very limited in practice. In particular, a Federal Appeals Court ruled in 1986 that any state law having as its purpose an environmental protection or public safety function is not preempted by the OSHA standard. In effect, the Court held that while states cannot infringe on OSHA’s workplace jurisdiction, they are free to impose their own requirements on the broader issue of community safety and right-to-know. The same freedom presumably extends to local governments. Thus, although the OSHA standard is apparently the only right-to-know rule applicable in the workplace, state and local governments remain free to regulate broader right-to-know matters affecting the community at large.
While OSHA has clearly expressed its intent to preempt differing state and local workplace right-to-know requirements, EPA (in accordance with provisions of the Emergency Planning and Community Right-to-Know Act) has taken the opposite approach. Federal rules on this subject specifically do not preempt differing state and local laws. With state and local governments apparently free to enact community-oriented rules they deem appropriate, and with the scope of OSHA’s workplace preemption in doubt, the coming months and years should be challenging ones for all employers.
“Dry Run” Program Available
The Institute of Scrap Recycling Industries (ISRI) has closely monitored the right-to-know situation since the first rules were proposed. During the ensuing years, a number of bulletins addressing right-to-know issues have been distributed to members, and ReMA continues to keep its members abreast of new developments.
Members may obtain from ReMA details about specific requirements of the EPA or OSHA right-to-know programs upon request. One of the most useful publications available to members is a model hazard communication program. This program is designed to simplify a company’s compliance with requirements of the OSHA Hazard Communication Standard. The model program consists of a step-by-step guide to completion of a written hazard communication program (required by the standard), and a script that can be used as the basis for required employees training. A complimentary copy of this program is available to ReMA members upon request. •