OSHA REVIEWS MSDS REGS

The unreasonable burden upon employers of Material Safety Data Sheet (MSDS) compliance management has been brought to the attention of the Occupational Safety and Health Administration by Senator Michael Enzi (R-WY) in conjunction with FIGHT (Families in Grief Hold Together) OSHA watchdog project founder Ron Hayes and the American Industrial Hygiene Association. Accordingly, OSHA Administrator John Hayes has requested that compliance officers conduct an “inservice” audit regarding MSDS problems such as reliability, accuracy, and accessibility in the workplace. OSHA's Hazard Communication (HazCom) Program, 29 CFR 1910.1200, requires MSDS management with document availability for employees.

Problems initiating the request include inaccurate and unreliable MSDSs, the difficulty of keeping MSDSs updated, and the undue burden of having employers keep MSDSs for every material, cleaner, oil, lubricant, and otherwise relatively mild product in use. Originally intended for the petrochemical and chemical industries, MSDS requirements were extended to include all employers when last minute changes in rulemaking expanded the scope. A typical concrete plant could have two hundred or more materials requiring MSDSs per the current standard.

OSHA is developing three guidance documents that will include hazard determination, the preparation of MSDSs, and a model-training program for HazCom. The current determination for a “hazardous material” includes virtually every substance. Although the American National Standards Institute (ANSI) currently employs an industry standard that is far better than OSHA's regulatory guideline, preparation of MSDSs in compliance with OSHA is based on the agency's outdated guidance. And finally, is it possible that if employers followed a model-training program, they would be spared OSHA's interpretation of employer-training adequacy?

Larger companies have eased some of the difficulties associated with maintaining updated MSDSs by using a computerized database that employees can access for MSDS information. A single plant thereby needs only to maintain a list of chemicals used at the plant; the task of maintaining paper copies and updates to each MSDS is no longer a plant-site problem. Smaller companies lacking such capabilities may still struggle to comply, although new solutions are becoming more widely available.

Now emerging are regulatory-compliance service companies that maintain a database of MSDSs for clients — an appealing option for small employers. The service provider is notified by the plant of the company's MSDS list, including any new chemicals used on site. Subsequently, the database is updated as needed to include the information online and make the MSDSs available for employee inspection.

A favorite ploy of the OSHA inspector is typically to ask an employee if he or she has been educated on the hazardous properties of an oil, detergent, or other chemical that the worker must handle in the course of performing his or her job. If the employee does not know the location of the MSDS or cannot recall being specifically trained in the hazardous properties of the chemical, an employer can be found in violation of the standard. Even when documentation can be provided by the company to prove the employee was trained, OSHA will consider the training inadequate if the individual does not respond appropriately when questioned by a federal inspector. Yet, in spite of extensive training in compliance with OSHA regulations, an employee is sometimes dumbstruck when facing an inspector: the immediate pressure on a worker who is well aware of the employer's sensitivity to OSHA review coupled with a lack of preparation or notice in advance of the investigative inquiry can lead to a blank response. Stated bluntly, such a situation can easily degenerate into the predicament of a college-educated, government-trained federal inspector trapping an hourly worker by means of a rather sophisticated regulatory question for use against an employer. Whether or not Senator Enzi's call for reform will ultimately result in a more reasonable compliance standard for employers in the products manufacturing environment remains unknown.

Although not included in Senator Enzi's call for reform or specifically under investigation by OSHA as a result of the Senator's initiative, the related issue of product labeling comes into question following his suggestion of introducing a modicum of common sense into HazCom regulations. At present, nearly all chemicals carry hazard-warning labels on their containers as required by HazCom, other environmental standards, and product liability issues. OSHA might do well to recognize such notices or warnings regarding product use as significant to the end user and thus limit dual training and warning requirements.

Congress considers new mold bill

Representative John Conyers (D-MI) has introduced “U.S. Toxic Mold Safety and Protection Act of 2003” (HR 1286), his second mold bill in two years. According to the American Society of Safety Engineers (ASSE) as reported in the October issue of the Journal of Professional Safety, “the focus of government measures needs to be placed where it is actually needed, on determining standards for the actual activities of mold inspection mold remediation and mold risk assessment.”

Although at present mold is not specifically regulated, future regulation may be anticipated that requires employers to ensure their employees are not exposed to mold concentrations exceeding a specified standard. For compliance, monitoring mold may not be an inexpensive proposition, since a Certified Industrial Hygienist or similar health professional with mold expertise could be required to monitor mold concentrations via a time-weighted method. Evaluating the sample would include a lab bill for identifying the types of mold and determining their concentrations. Mold monitoring costs are expected to approximately equal monitoring costs for silica dust.

OSHA revises 300 Form

OSHA's revised form 300, Log of Work-Related Injuries and Illnesses, is now available at www.osha.gov. Among several changes for 2004, most notable is the addition of an occupational hearing loss column. Other changes include:

1. The “days away from work” column is now located before the days “on job transfer or restriction”;
2. Clearer formulas are provided for calculating incidence rates;
3. New recording criteria for occupational hearing loss are provided in the “Overview” section;
4. A more prominent column heading “Classify the Case” is provided to help clarify that only one selection is allowed from the four options.

These changes were reportedly implemented in response to public comment to facilitate easier use.

Employers must begin using the new OSHA Form 300 on January 1, 2004. The new form is identified by the date of revision, indicated as rev. 1/2004 on the form next to the document number.

Injuries and illnesses for years prior to 2004 should continue to be recorded on the appropriate form for that year, i.e., injuries and illnesses dating to 2002 and 2003 should be recorded on forms corresponding to those years. Accordingly, the forms for 2003 and 2002 will continue to be available on OSHA's website. Furthermore, employers should use the old OSHA 300A Summary Form (without the hearing loss column) for required posting in February 2004; the new 300A form including the hearing loss column should be used for posting in February 2005.

ANSI FIRST-AID KIT STANDARD

Employers who do not use a first-aid kit service provider that periodically stocks their first aid kits should be aware that ANSI has revised its standard through the International Safety Equipment Association. ANSI Z308.1-2003 Minimum Requirements for Workplace First Aid Kits adds analgesics, burn dressings and CPR barriers to the list of first aid items mandated by the previous standard. The kits are specified to include treatment materials for wounds such as cuts and abrasions, minor burns, and eye injuries. Any employer using a first-aid kit service provider is advised to confirm that its kits are maintained in accordance with the revised standard.