# Hazard Communication; Final Rule DEPARTMENT OF LABOR

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-2273

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** February 9, 1994

## Text

SUMMARY: The HCS requires employers to establish hazard communication
programs to transmit information on the hazards of chemicals to their
employees by means of labels on containers, material safety data
sheets, and training programs. Implementation of these hazard
communication programs will ensure all employees have the ``right-to-
know'' the hazards and identities of the chemicals they work with, and
will reduce the incidence of chemically-related occupational illnesses
and injuries.
This modified final rule includes a number of minor changes and
technical amendments to further clarify the requirements, and thereby
help ensure full compliance and achieve protection for employees. In
particular, the rule adds and clarifies certain exemptions from
labeling and other requirements; modifies and clarifies aspects of the
written hazard communication program and labeling requirements;
clarifies and slightly modifies the duties of distributors,
manufacturers, and importers to provide material safety data sheets
(MSDSs) to employees; and clarifies certain provisions regarding MSDSs.

EFFECTIVE DATES: The amendments in this document will be effective on
March 11, 1994.

FOR FURTHER INFORMATION CONTACT: Mr. James F. Foster, Office of
Information and Consumer Affairs, Occupational Safety and Health
Administration, 200 Constitution Avenue, NW., room N3647, Washington,
DC 20210; telephone (202) 219-8151.
To aid in efforts to comply with the HCS, a single copy of the
following documents may be obtained without charge from OSHA's
Publications Office, room N3101 at the above address, (202) 219-4667:
the Hazard Communication Standard (a Federal Register reprint of
today's publication); OSHA 3084, Chemical Hazard Communication, a
booklet describing the requirements of the rule; OSHA 3117, Informacion
Sobre Los Riesgos De Los Productos Quimicos, a Spanish translation of
OSHA 3084; OSHA 3111, Hazard Communication Guidelines for Compliance, a
booklet which reprints Appendix E of the standard to further help
employers comply with the rule; and OSHA 3116, Information Sobre Riegos
Normas De Cumplimiento, a Spanish translation of OSHA 3111.
OSHA 3104, Hazard Communication--A Compliance Kit (a step-by-step
guide to compliance with the standard) is available from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402, (202) 783-3238; GPO Order No. 929-022-00000-9;
$18--domestic; $22.50--foreign.

SUPPLEMENTARY INFORMATION: References to the rulemaking record are made
in the text of this preamble. The Hazard Communication Standard docket,
No. H-022, contains eight sub-dockets--H-022A, H-022B, H-022C, H-022D,
H-022E, H-022F, H-022G, and H-022H. All of these docket files are part
of the rulemaking record. However, in this document, no specific
references are made to either Docket H-022C or H-022E (these files deal
exclusively with the issue of trade secrets), or H-022F, H-022G, and H-
022H. The following abbreviations have been used for citations to the
other record files:
H-022, Ex.: Exhibit numbers in Docket H-022, which includes H-022A
and H-022B, for exhibits collected for the original 1983 HCS for
manufacturing.
Ex.: Exhibit numbers in H-022D for exhibits collected since the
1985 Court remand related to the expansion of the scope of industries
covered. This docket includes the comments received in response to the
August 8, 1988 proposal.
Tr.: Public hearing transcript page numbers. The hearing transcript
pages from the December 1988 hearing are not numbered consecutively,
i.e., each day begins again with page 1. Transcript references will
thus include a reference to the day, and the page number for that day's
testimony. The days are numbered as follows: December 6 is Day 1;
December 7 is Day 2; December 8 is Day 3; December 9 is Day 4; December
12 is Day 5; December 13 is Day 6; and December 14 is Day 7. As an
example, a reference to testimony which appears on page 65 of the
transcript for December 8 will be indicated as ``Tr. 3-65.'' Transcript
references to hearings held between June 15 and July 31, 1982, are
consecutively numbered, and will not have a prefix number identifying
the day.

I. Background

A. Review of the Need for the Standard

The HCS was promulgated to provide workers with the right to know
the hazards and identities of the chemicals they are exposed to while
working, as well as the measures they can take to protect themselves.
OSHA has estimated that there are over 32 million workers exposed to
hazardous chemicals in over 3.5 million workplaces (48 FR 53282, 53323;
52 FR 31871). According to the National Institute for Occupational
Safety and Health (NIOSH), there are as many as 575,000 hazardous
chemical products in these workplaces (48 FR 53323). Based on the
growth rate of the chemical industry with regard to new products, this
number may now be as high as 650,000. Chemical exposures occur in every
type of industry (52 FR 31858). (See also Exs. 4-1 and 4-2.) In fact,
workers typically experience multiple exposures to numerous industrial
chemicals at one point of time or over a long period of employment. 48
FR 53323.
Besides having what OSHA considers to be an inherent right to know
about hazardous chemicals in their workplaces, exposed employees have a
need to know this information as they are at significant risk of
experiencing adverse health or physical effects in the absence of such
knowledge. Chemicals pose a myriad of hazards to exposed workers, from
mild health effects, such as irritation, to death. Some chemicals cause
or contribute to chronic diseases, such as heart disease, kidney
disease, sterility, or cancer. Many chemicals cause acute injuries or
illnesses such as rashes, burns, and poisoning. Numerous chemicals pose
physical hazards to workers by contributing to accidents like fires and
explosions.
During the HCS rulemaking, data collected about chemical illness
and injury rates in manufacturing sectors showed that some 40-50,000
manufacturing workers experienced chemical source illnesses a year, and
an average 10,000 worker compensation claims were filed annually in
connection with chemical illness or injury in manufacturing (48 FR
53285). Employees in non-manufacturing industries were estimated to
experience acute chemical illness and injury at the rate of 13,671
injuries, 38,248 illnesses, and 102 fatalities per year. 52 FR 31868.
The chronic disease rate was 17,153 chronic illnesses, 25,388 cancer
cases, and 12,890 cancer deaths per year. Id. (Compare with, Ex. 4-77
(NIOSH data indicating 136,212 work-related chemical injuries treated
in emergency rooms in 1986)).
OSHA believes that the reported data understate the extent of the
health and safety problems caused by chemicals in the workplace. Lack
of knowledge about health effects associated with chemical exposures
contributes to the chronic underreporting of occupational illnesses
(Exs. 4-44; 41). As the effects caused are diseases or physical
manifestations that may also occur in workers as a result of non-
chemical or non-occupational factors, it is often difficult to identify
such ailments as being caused by occupational exposures. Misdiagnosis
is a problem and often symptoms are treated without realizing that the
cause is an occupational chemical exposure. See, e.g., 53 FR 25973 (Ex.
4-178).
Worker turnover in many industries also increases the likelihood
that the link between a workplace chemical exposure and subsequent
illness will be overlooked and will not be reported. This is
particularly true for long-term health effects which develop over time,
or after repeated exposures. Many chronic diseases are characterized by
long latency periods of 20-30 years or longer.
In addition, health effects of some chemicals may contribute to the
occurrence of injuries that are reported but are not causatively linked
to chemical exposures. For example, central nervous system depression
due to solvent exposure may cause a painter to become dizzy and fall
off a ladder. The subsequent injury may be reported, but the solvent
exposure is not identified as the cause. (See Exs. 67 for studies on
neurobehavioral changes in painters due to solvent exposures; 4-161 for
case of injury to cosmetologist resulting from solvent exposure causing
dizziness, loss of balance, and a fall.)

B. Overview of Standard

The purpose of the HCS is to ensure that the hazards of all
chemicals produced or imported are evaluated, and that information
concerning their hazards is transmitted to employers and employees. In
broad outline, the HCS achieves its purpose by an integrated three-
pronged system. First, chemical manufacturers and importers must review
available scientific evidence concerning the physical and health
hazards of the chemicals they produce or import to determine if they
are hazardous. (Paragraph (d)). Second, for every chemical found to be
hazardous, the chemical manufacturer or importer must develop
comprehensive material safety data sheets (MSDSs) and warning labels
for containers and send both downstream along with the chemicals.
(Paragraphs (f), (g)). Third, all employers must develop a written
hazard communication program and provide information and training to
employees about the hazardous chemicals in their workplace. (Paragraphs
(e), (h)).
The three information components in this system--labels, material
safety data sheets, and worker training--are all essential to the
effective functioning of the program. The MSDSs provide comprehensive
technical information, and serve as a reference document for exposed
workers as well as health professionals providing services to those
workers. The labels provide a brief synopsis of the hazards of the
chemicals at the site where the chemical is used in the work area.
Training ensures that workers understand the information on both MSDSs
and labels, know how to access this information when needed, and are
aware of the proper protective procedures to follow. Each component
effectuates the others. See General Carbon Co. v. OSHRC, 860 F.2d 479,
481 (DC Cir. 1988).
The provision of information under the HCS about these effects and
protective measures will reduce the incidence of chemical source
illnesses and injuries in the workplace. 48 FR 53281-83. An effective
hazard communication program will accomplish this purpose through
modifying the behavior of both employers and employees. Employers, many
of whom have not been aware of the potential hazards of the chemicals
they purchase to use in their workplaces, will be able to use the
information provided under the HCS to design better protective
programs. Complete information about chemicals may allow an employer to
choose a less hazardous product, thus preventing dangerous exposures
from occurring. Exs. 4-194, 71-40. Accurate information is also needed
to properly design engineering controls, select appropriate protective
clothing, and choose an effective respirator for exposed employees. Ex.
71-40. Improved understanding of chemical hazards by supervisory
personnel results in safer day-to-day handling of hazardous substances,
and proper storage and clean-up. See e.g., Exs. 4-61, 4-75, 71-40.
Workers provided the necessary hazard information will more fully
participate in, and support, the protective measures instituted in
their workplaces. The presence of labels and material safety data
sheets in the workplace will provide each worker with the hazards of
the chemicals, as well as the means to protect themselves. The training
of workers will teach them how to use the available information
effectively. Properly trained workers will know how to read and use
labels and material safety data sheets, will know what protection is
required to work safely with the chemicals in the workplace and will
use it, and will be able to determine what actions are necessary if an
emergency occurs. (E.g., Exs. 4-75, 4-174.) Information on chronic
effects of exposure to hazardous chemicals will help workers recognize
such symptoms and seek early treatment of chronic disease.
The information provided under hazard communication will also
enable health and safety professionals to provide better services to
exposed employees. (E.g., Exs. 4-153, 71-37.) Medical surveillance,
exposure monitoring, and other such services will be enhanced by the
ready availability of health and safety information.
As OSHA has noted in Appendix E of the rule: ``For any safety and
health program, success depends on commitment at every level of the
organization. This is particularly true for hazard communication, where
success requires a change in behavior. This will only occur if
employers understand the program, and are committed to its success, and
if employees are motivated by the people presenting the information to
them.''
It is in these ways that the HCS addresses the significant risks
posed to workers handling hazardous chemicals and not knowing their
hazards or the proper methods of handling and using them. This
rulemaking is intended to promulgate minor changes and technical
amendments to the existing HCS to enhance its effectiveness.

C. History of the Rulemaking

The development of OSHA's Hazard Communication Standard (HCS) was
initiated in 1974. The process has been lengthy and is discussed in
detail in the preambles to both the original and revised final rules
(see 48 FR 53280-81 and 52 FR 31852-54), and in the August 1988 NPRM
(53 FR 29822-25). This discussion will focus on the sequence of events
which has occurred since the original final rule was published in the
Federal Register on November 25, 1983, and in particular, those which
have occurred since the NPRM was published.
The original rule, which was promulgated on November 25, 1983 (48
FR 53280), covered employees in the manufacturing sector of industry.
That rule was modified on August 24, 1987 (52 FR 31852) to expand the
coverage to all industries where employees are exposed to hazardous
chemicals. Complete implementation of the standard's requirements in
the non-manufacturing sector was subsequently delayed by various court
and administrative actions. However, the August 24, 1987, rule is now
fully effective and has been so since January 24, 1989, and is being
enforced in all industries. (See Notice of Enforcement, 54 FR 6886,
Feb. 15, 1989).
Petitions for judicial review of the original 1983 rule covering
manufacturing were filed in the U.S. Court of Appeals for the Third
Circuit (hereinafter referred to as ``the Court'' or ``the Third
Circuit'') by the United Steelworkers of America, AFL-CIO-CLC, and by
Public Citizen, Inc., representing itself and a number of labor groups.
Motions to intervene in these cases were received from the Chemical
Manufacturers Association, the American Petroleum Institute, the
National Paint and Coatings Association, and the States of New York,
Connecticut, and New Jersey. In addition, petitions for review of the
standard were filed by the State of Massachusetts in the First Circuit;
the State of New York in the Second Circuit; the State of Illinois in
the Seventh Circuit; the Flavor and Extract Manufacturers' Association
in the Fourth Circuit; and the Fragrance Materials Association in the
District of Columbia Circuit. These cases were subsequently transferred
to the Third Circuit and consolidated into one proceeding. The cases
brought by the Flavor and Extract Manufacturers' Association and the
Fragrance Materials Association were withdrawn prior to filing briefs.
The Court issued its initial decision on the challenges to the
rule on May 24, 1985 United Steelworkers of America v. Auchter, 763
F.2d 728 (3d Cir. 1985)(Ex. 4-21.) The standard was upheld in most
respects, but three issues were remanded to the Agency for
reconsideration. The decision was not appealed.
First, the Court concluded that the definition of trade secrets
incorporated by OSHA included chemical identity information that was
readily discoverable through reverse engineering and, therefore, was
``broader than the protection afforded trade secrets by state law.''
The Court directed the Secretary of Labor to reconsider a trade secret
definition which would not include chemical identity information that
is readily discoverable through reverse engineering. Secondly, the
Court held the trade secret access rule in the standard invalid insofar
as it limited access to health professionals, but found the access rule
otherwise valid. The Secretary was directed to adopt a rule permitting
access by employees and their collective bargaining representatives to
trade secret chemical identities. OSHA complied with the Court orders
regarding the two trade secret issues in a separate rule, published in
final form on September 30, 1986 (51 FR 34590). The revised trade
secret provisions were incorporated into the text of the final rule
published on August 24, 1987.
The third issue remanded to OSHA involved the scope of industries
covered by the standard. The original HCS applied to employers and
employees in the manufacturing sector. The Court directed the Secretary
of Labor to reconsider the standard's application to employees in other
industry sectors, and ``to order its application in those sectors
unless he can state reasons why such application would not be
feasible.'' 763 F.2d at 739, 743.
OSHA subsequently published an advance notice of proposed
rulemaking (ANPR) to collect comments and information on the expansion
of the scope to cover these additional sectors (50 FR 48795; November
27, 1985). In particular, the Agency sought information on the extent
employers in non-manufacturing industries had already implemented
various aspects of a hazard communication program. In addition, OSHA
wanted to obtain data regarding the applicability of the provisions as
written in the original rule to these other sectors. A total of 226
responses were received. (See Ex. 2.) OSHA also commissioned a study of
the economic impact of extending the HCS to the fifty major non-
manufacturing industry groups within its jurisdiction. (See Exs. 4-1
and 4-2.) Based on this newly acquired evidence, as well as the
previous rulemaking record, OSHA was in the process of drafting a
proposed rule.
On January 27, 1987, however, the United Steelworkers of America,
AFL-CIO-CLC and Public Citizen, Inc., petitioners in the 1985
challenge, filed a Motion For An Order Enforcing the Court's Judgment
and Holding Respondent in Civil Contempt. Petitioners claimed that the
Court's 1985 order had not authorized OSHA to embark on further fact
gathering, and that OSHA should have made a feasibility determination
based upon the 1985 rulemaking record. Petitioners also argued that
even if further fact gathering had been allowed by the Court's order,
OSHA's pace was unduly slow.
In response, OSHA noted that the Court's 1985 order did not specify
that OSHA should act on the then-existing record. OSHA believed that
seeking further evidence on feasibility in non-manufacturing was
appropriate in light of its statutory obligation to issue rules that
are well grounded in a factual record. OSHA also asserted that,
consistent with Supreme Court precedent, the Agency should be permitted
to exercise its discretion in determining the appropriate rulemaking
procedures for complying with the Court's remand order. Lastly, the
Agency argued that its schedule to complete the rulemaking was
reasonable and did not constitute undue delay.
On May 29, 1987, the Court issued a decision holding that the
Court's 1985 remand order required consideration of the feasibility of
an expanded standard without further rulemaking. United Steelworkers of
America, AFL-CIO-CLC v. Pendergrass, 819 F.2d 1263 (3d Cir. 1987) (Ex.
4-20.) The Court declared that adequate notice had been provided to
non-manufacturers during the original rulemaking that they might be
covered by the HCS, id. at 1265-1266, 1269, that the answers to the
remaining questions OSHA may have had regarding feasibility were
``self-evident'' or ``readily ascertainable'' from the original record,
id. at 1268-69, and that further fact finding was ``unnecessary'', id.
at 1268. The Court ordered the Agency to issue, within 60 days of its
order, ``a hazard communication standard applicable to all workers
covered by the OSHA Act, including those which have not been covered in
the hazard communication standard as presently written, or a statement
of reasons why, on the basis of the present administrative record, a
hazard communication standard is not feasible.'' Id. at 1270.
OSHA subsequently re-evaluated the evidence in the record and
determined that a modified final rule covering all employers subject to
the Act (i.e., both manufacturing and nonmanufacturing) was both
necessary (the Agency had determined in 1983 that all employees exposed
to hazardous chemicals without having adequate information about them
were at significant risk of experiencing adverse effects) and feasible
(both technologically and economically). The Agency therefore issued
the revised rule on Hazard Communication which was published in the
Federal Register on August 24, 1987 (52 FR 31852).
The only modifications OSHA made to the original rule in the 1987
revision were those that were related to expansion of the scope.
Publication of a final rule precluded any actions other than those
specifically required by the expansion, particularly since the Court
determined that the record it reviewed (exhibits collected through
November 1983) was a sufficient basis for the final rule. Thus evidence
collected subsequent to that time was merely cited as additional
substantiation for the expansion.
The revised final rule expanded the scope of industries covered
from just the manufacturing sector to all industries where employees
are exposed to hazardous chemicals. As OSHA stated at that time, the
Agency has evidence to indicate that there is chemical exposure in
every type of industry, lack of knowledge about those hazardous
chemicals puts employees at a significant risk of experiencing material
impairment of health, and thus employees in all industries must have
protection under the rule. (See 52 FR 31858.)
Although the standard was issued as a final rule, OSHA invited
interested parties to submit information, data or evidence regarding
the feasibility or practicality of the provisions as written when
applied to the non-manufacturing sector, as well as any recommendations
for further modification. A 60-day period was established for such
comments, and it ended on October 23, 1987. A total of 137 comments
were received (40 of them were received after the deadline), and
entered into Docket H-022D (Ex. 5). A variety of opinions was expressed
in the comments regarding a number of issues; however, most of the
comments did not contain data or evidence concerning either feasibility
or practicality. Many of the comments were questions or requests for
clarification of the provisions.
In addition to the comments submitted to OSHA, the Office of
Management and Budget (OMB) convened a public meeting under the
Paperwork Reduction Act (44 U.S.C. 35) to address the information
collection requirements of the expanded rule. The transcript of the OMB
public meeting (which was held on October 16, 1987) is entered in the
docket as Ex. 5-76, and other relevant documents (e.g., copies of
statements, etc.) are entered in Exhibit 6. (In addition, the
transcript of an April 2, 1987, public meeting on the information
collection requirements for the manufacturing sector is Ex. 4-3.) The
majority of the participants in OMB's October 16 meeting submitted
written comments to OSHA as well, so there is considerable duplication
in Exhibit 6 of opinions that had already been expressed by the same
parties in other parts of the rulemaking record.
In a letter sent to the Department of Labor on October 28, 1987,
and subsequently published by OSHA in the Federal Register on December
4, 1987 (52 FR 46075) (Ex. 4-67), OMB, under the authority of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.), disapproved certain
information collection requirements in the expanded scope rule, as of
the rule's effective date (May 23, 1988). These were based upon the
record of the October 16 public meeting and the previous meeting on
April 2, 1987 regarding the information collection requirements for the
manufacturing sector, as well as OSHA's preamble to its August 24 rule
and its justification submitted formally under the Paperwork Reduction
Act. The October 28 letter stated that OMB disapproved: (1) The
requirement that material safety data sheets be provided on multi-
employer worksites; (2) coverage of any consumer product that falls
within the ``consumer products'' exemption included in Section
311(e)(3) of the Superfund Amendments and Reauthorization Act of 1986;
and (3) coverage of any drugs regulated by the Food and Drug
Administration in the non-manufacturing sector. In addition, OMB
determined that OSHA should reopen the rulemaking on the HCS to
consider alternatives to the definition of ``article'' which was
included in both the original and revised final rules. Lastly, OMB
conditioned paperwork approval upon OSHA's consulting with the U.S.
Small Business Administration and the Department of Commerce in order
to develop a plan for a Federal administrative effort that will provide
assistance to the regulated industries to alleviate paperwork burdens
and costs. For a complete description of OMB's rationale for these
determinations, see the Federal Register notice of December 4, 1987 (52
FR 46075).
On April 13, 1988, OMB extended its approval of all information
collection requirements in the HCS through April 1991, except that OMB
continued to disapprove the three provisions previously disapproved. 53
FR 15033. OMB's approval of the existing definition of ``article'' was
limited to the clarification included in a January 14, 1988, letter
from Assistant Secretary for Occupational Safety and Health John
Pendergrass to OMB, which stated that ``absent evidence that releases
of such very small quantities could present a health hazard to
employees, the article exception to the rule's requirements would
apply.'' In response to commenters who requested that OMB not extend
approval to any requirements in the non-manufacturing sector, OMB also
stated:

The concerns of these commenters are largely based on the
possibility that the standard and OMB's decision under the PRA will
change dramatically as a result of the rulemaking. Although change
is always possible, any such change would be fully considered during
the rulemaking process. Of course, in order for OMB to grant PRA
approvals, any changes must offer sufficient practical utility to
justify any incremental paperwork burden they impose, including the
burden of revising already-developed written programs. Moreover, as
stated above, we are continuing to disapprove the previously-
disapproved provisions; the rulemaking should of course conform the
rule to these disapprovals.

On August 8, 1988, OSHA published a notice of proposed rulemaking
(NPRM) to modify its Hazard Communication Standard (HCS) (53 FR 29822).
In the NPRM, OSHA reopened the rule on all of the issues raised by
OMB in its letter in order to have an opportunity to fully discuss the
complete current record on each item, as well as to collect additional
data from the public.
The initial deadline for receipt of comments on the NPRM was
October 7, 1988. This date was later extended to October 28, 1988. OSHA
received 167 comments.
An informal public hearing was convened in Washington, DC on
December 6, 1988, and was adjourned on December 14, 1988. Over 1300
pages of oral testimony were received. Sixty days were provided for
post-hearing submissions of new information by hearing participants
(ending February 13, 1989), and an additional thirty days were allowed
for submission of summary briefs. A total of thirty-four post-hearing
exhibits have been entered into the record.
Administrative Law Judge George Fath certified and closed the
hearing record on November 9, 1990.
OSHA published two requests for comments and information subsequent
to the 1988 NPRM. On January 22, 1990 (55 FR 2166), the Agency
solicited public input related to international harmonization of
chemical safety and health information, and a proposed convention and
recommendation of the International Labor Organization (ILO). OSHA
received 52 comments in response to this notice which were used by
United States' representatives to prepare for participation in the ILO
meetings on these documents.
On May 17, 1990 (55 FR 20580), OSHA published a request for
comments on improving the effectiveness of information generated in
accordance with the HCS, and subsequently disseminated on labels and
MSDSs. Nearly 600 comments were received during the 90 day comment
period. Many commenters supported standardization of the format or
order of information on the MSDSs, and of the presentation of
information on labels. The Agency has decided that administrative or
regulatory changes to be made in response to these comments will be
done separately from this final rule.

D. Court Challenges to the Revised Final Rule

The revised final rule was challenged in the U.S. Court of Appeals
by the Associated Builders and Contractors, National Grain and Feed
Association, Associated General Contractors of Virginia, Associated
General Contractors of America, and United Technologies Corporation. A
number of interested parties intervened in the cases as well. The
challenges generally involved the appropriateness of OSHA's publishing
a final rule in response to the Third Circuit's order.
Although these cases were originally consolidated in the U.S. Court
of Appeals for the District of Columbia Circuit, they were transferred
to the U.S. Court of Appeals for the Third Circuit on May 20, 1988. The
cases were transferred to the Third Circuit because the ``revised [HCS]
was promulgated in response to orders by the Third Circuit * * * and
petitioners have raised issues similar to those already considered by
that court.''
On June 24, 1988, the Third Circuit granted a stay of the standard
as it applied to the construction industry (29 CFR 1926.59) pending the
outcome of the litigation challenging the rule. OSHA published a notice
in the Federal Register on July 22, 1988 (53 FR 27679) to provide the
public further information regarding the applicability of the stay to
construction employers and enforcement of the rule in the other
industries
After considering the merits of the challenges to the standard
which were filed by employer representatives, the U.S. Court of Appeals
for the Third Circuit issued a decision on November 25, 1988 that
denied the petitions for review. The Court stated: ``None of the
substantive or procedural challenges to the application of the hazard
communication standard to the construction or grain processing and
storage industries have merit. The petitions for review of ABC
(Associated Builders and Contractors, Inc.), AGC (The Associated
General Contractors), NGFA (The National Grain and Feed Association,
Inc.) and UTC (United Technologies Corporation) will therefore be
denied. The stay of those standards granted by a panel of this court on
June 24, 1988, shall be vacated.'' Associated Builders and Contractors,
Inc. v. Brock, 862 F.2d 63, 69 (3d Cir. 1988) (Ex. 15). Further
requests from the AGC and the ABC for a continuation of the stay were
denied by the Third Circuit and by the United States Supreme Court
(Nos. 88-1070; 88-1075). The Supreme Court also declined to review the
Third Circuit's decision (November 29, 1988). The Third Circuit's
ruling became fully effective on January 30, 1989. The standard,
therefore, is effective in all industries. 54 FR 6886.

E. Litigation Involving Provisions Disapproved With Regard to
Information Collection Requirements

As described above, on October 28, 1987, the Office of Management
and Budget (OMB), citing authority of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.), disapproved certain information collection
requirements in the expanded scope rule, as of the rule's effective
date. On December 4, 1987 (52 FR 46075), OSHA published OMB's letter
describing its determination in a notice in the Federal Register. (See
also 53 FR 15033 (Apr. 27, 1988) (OMB letter to Department of Labor
dated April 13, 1988)).
The provisions that OMB disapproved were: (1) The requirement that
material safety data sheets be provided on multi-employer worksites;
(2) coverage of any consumer product that falls within the ``consumer
products'' exemption included in section 311(e)(3) of the Superfund
Amendments and Reauthorization Act of 1986; and (3) coverage of any
drugs regulated by the Food and Drug Administration in the non-
manufacturing sector. In accordance with OMB's decision, OSHA did not
enforce these three disapproved requirements.
OMB's disapproval of the HCS provisions was challenged in the U.S.
Court of Appeals for the Third Circuit. On August 19, 1988, the Court
of Appeals invalidated OMB's actions as being outside OMB's authority
under the Paperwork Reduction Act. United Steelworkers of America v.
Pendergrass, 855 F.2d 108 (3d Cir. 1988)(Ex. 4-190). The Court held
that the three disapproved HCS provisions did not require ``collection
of information'' under the Paperwork Reduction Act and embodied
substantive policy decisionmaking entrusted to OSHA. Id. at 112. The
Court ordered that: ``The Secretary [of Labor] shall publish in the
Federal Register a notice that those parts of the August 24, 1987
hazard communication standard which were disapproved by OMB are now
effective.'' Id. at 114.
On September 2, 1988, the U.S. Department of Justice filed a
petition with the Third Circuit requesting a rehearing and suggesting a
rehearing en banc, which automatically stayed the effect of the Court's
order. The Court denied the petition for rehearing (November 29, 1988),
as well as requests for stay of the decision. In addition, a further
motion by industry representatives for a stay of the decision was
denied by U.S. Supreme Court Justice Brennan (January 24, 1989), and by
the full Court upon reconsideration (February 21, 1989).
The Third Circuit's decision became effective January 30, 1989. As
ordered by the Third Circuit, OSHA published a notice in the Federal
Register on February 15, 1989 (54 FR 6886) to inform affected employers
and employees that all provisions of the HCS were in effect in all
industries. As a matter of enforcement policy, OSHA did not check for
compliance with the three provisions in programmed inspections until
March 17, 1989.
To implement the court order, technical amendments were made to the
HCS to delete from notes following the headings of the standard, and
from the parentheticals following the text of the standard, statements
that any provisions of the HCS are disapproved by OMB. The OMB-assigned
control number for the approved collection of information requirements
of the HCS remain following the text of the standard. The Paperwork
Reduction Act requires display of OMB control numbers with all
information collection provisions.
Following the decision in United Steelworkers, the Solicitor
General requested the Supreme Court on behalf of the United States
government to review the case, and the Court granted its request. In
Dole v. United Steelworkers of America, the Supreme Court affirmed the
judgment of the Third Circuit. 110 S.Ct. 929 (1990). The Court held
that the term ``collection of information'' in the Paperwork Reduction
Act refers solely to the collection of information by or for the use of
a federal agency, and does not cover rules mandating disclosure of
information to a third party. Id. at 937. Thus, the OMB-disapproved
provisions reinstated by the Third Circuit continue to be in effect.
The primary purpose for the 1988 HCS NPRM was to address the issues
related to the OMB disapproval. As the Third Circuit has invalidated
OMB's disapproval, and that decision was upheld by the Supreme Court,
those provisions are no longer considered to be information collection
requirements subject to OMB review and approval. The modifications in
this final rule are based upon OSHA's determination that clarifications
would enhance compliance and thus protection of workers. The only
information collection burdens for the rule involve access by OSHA
during inspections to records maintained by the employer. These were
approved by OMB on June 24, 1991 until April 1994 (control number 1218-
0072). As this final rule does not affect the access burden, OSHA is
not submitting this rule for further consideration under the authority
of the Paperwork Reduction Act.

F. Advisory Committee on Construction Safety and Health (ACCSH)

As discussed in the preamble to the August 1987 final rule (52 FR
31858-59), the ACCSH reviewed a draft notice of proposed rulemaking to
expand the scope of the HCS to construction on June 23, 1987. The ACCSH
went through the NPRM line-by-line, making recommendations to adapt it
to the construction industry, i.e., the document with the recommended
changes constituted an ACCSH recommended standard for hazard
communication (Ex. 4-186). A number of the recommendations were adopted
(e.g., the definition of workplace was modified to include job sites or
projects; the written hazard communication program requirements were
amended to state more clearly that the programs are to be maintained at
the site).
As the 1988 NPRM addressed issues that affect construction, OSHA
transmitted a draft of it to the ACCSH for review and comment. In a
meeting on March 30, 1988, the ACCSH did not provide specific
recommendations on the NPRM. The ACCSH reiterated its desire to have a
separate standard for construction, and appointed a subcommittee to
make further recommendations to the Assistant Secretary. However, the
ACCSH also reaffirmed that the standard as written should be
implemented on May 23, 1988 as originally scheduled.
The ACCSH-appointed subcommittee reviewed the standard again and
prepared new recommendations. The full committee voted to submit the
subcommittee's recommendations to OSHA at their meeting on November 30,
1988. Their recommendations are in the record as Exs. 14-1, 14-2, and
14-3.
The focus of their recommendations was to reorganize the
requirements of the rule by removing any provisions that apply
primarily to chemical manufacturers and importers. Their proposed draft
rule either deleted the requirements or moved them to an appendix. OSHA
does not agree that these requirements should be removed from the rule.
It is important for construction employers to be aware of what
information they are entitled to, and the distribution mechanisms.
Reorganization as suggested by the ACCSH detracts from the logical
presentation of the requirements, and makes the rule more difficult to
understand. OSHA believes that the addition of non-mandatory Appendix E
provides sufficient guidance for construction employers, as well as all
other employers using chemicals, to guide them to the applicable
provisions of the rule.
In addition, the ACCSH subcommittee suggested that a definition be
added for a ``competent person,'' and that such individuals be given
certain duties under the rule. OSHA does not believe that this is a
provision that would add to the protections of the rule. The HCS is
intended to train all workers about the hazards of chemicals and
appropriate protective measures. It is not clear what additional
training a worker would have to have to be designated a ``competent
person.'' The intent of the rule is to ensure that all workers are
trained to be ``competent.'' In addition, it was suggested that the
``competent person'' would have the authority to stop the job or
correct the hazards. This type of action is beyond the information
transmittal requirements of the HCS.

II. Pertinent Legal Authority

The primary purpose of the Occupational Safety and Health Act (the
Act) (29 U.S.C. 651 et seq.) is to assure, so far as possible, safe and
healthful working conditions for every American worker over the period
of his or her working lifetime. One means prescribed by the Congress to
achieve this goal is the mandate given to, and the authority vested in,
the Secretary of Labor to set mandatory safety and health standards.
Authority for issuance of this standard is found primarily in
sections 6(b), 8(c)(1), and 8(g)(2) of the Act. 29 U.S.C. 655(b),
657(c)(1), 657(g)(2). Section 6(b), and in particular Section 6(b)(5),
governs the issuance of occupational safety and health standards
dealing with toxic materials or harmful physical agents. Section
8(c)(1) of the Act empowers the Secretary to require employers to make,
keep, and preserve records regarding activities related to the Act and
to make such records available to the Secretary. Section 8(g)(2) of the
Act empowers the Secretary to ``prescribe such rules and regulations as
[she] may deem necessary to carry out [her] responsibilities under this
Act * * *.''
Section 3(8) of the Act, 29 U.S.C. 652(8), defines an occupational
safety and health standard as follows:

[A] standard which requires conditions, or the adoption or use of
one or more practices, means, methods, operations, or processes,
reasonably necessary or appropriate to provide a safe or healthful
employment and places of employment.

In addition, Congress specifically stated in section 6(b)(5) that:

The Secretary, in promulgating standards dealing with toxic
materials, or harmful physical agents under this subsection, shall
set the standard which most adequately assures, to the extent
feasible, on the basis of the best available evidence, that no
employee will suffer material impairment of health or functional
capacity even if such employee has regular exposure to the hazard
dealt with by such standard for the period of his working life.
Development of standards under this subsection shall be based upon
research, demonstrations, experiments, and such other information as
may be appropriate. In addition to the attainment of the highest
degree of health and safety protection for the employee, other
considerations shall be the latest available scientific data in the
field, the feasibility of standards, and experience gained under
this and other health and safety laws. Whenever practicable, the
standard promulgated shall be expressed in terms of objective
criteria and of the performance desired.

The Supreme Court has said that section 3(8) applies to all
permanent standards promulgated under the Act and requires the
Secretary, before issuing any standard, to determine that it is
reasonably necessary and appropriate to remedy a significant risk of
material health impairment. Industrial Union Dep't v. American
Petroleum Institute, 448 U.S. 607 (1980). The ``significant risk''
determination constitutes a finding that, absent the change in
practices mandated by the standard, the workplaces in question would be
``unsafe'' in the sense that workers would be threatened with a
significant risk of harm. Id. at 642. This finding, however, does not
require mathematical precision or anything approaching scientific
certainty if the ``best available evidence'' does not warrant that
degree of proof. Id. at 655-656; 29 U.S.C. 655 (b)(5). Rather, the
Agency may base its findings largely on policy considerations and has
considerable leeway with the kinds of assumptions it applies in
interpreting the data supporting it. 448 U.S. at 656.
Moreover, under the authority of Section 6(b)(7), 29 U.S.C.
655(b)(7), any standard issued by the Secretary shall contain
requirements that are essentially ``information-gathering'' in
function, including:

* * * prescrib[ing] the use of labels or other appropriate forms of
warning as are necessary to insure that employees are apprised of
all hazards to which they are exposed, relevant symptoms and
appropriate emergency treatment, and proper conditions and
precautions of safe use or exposure.

These requirements may be imposed at levels of risk below what would be
necessary for the setting of exposure limits because they serve the
purpose of ``keep[ing] a constant check on the validity of the
assumptions made in developing the permissible exposure limit, giving
it a sound evidentiary base for decreasing the limit if it was
initially set too high.'' Id. at 658 (footnote omitted). They also
provide basic protections for workers in the absence of specific
permissible exposure limits, particularly by providing employers with
guidance for designing protective programs.
After OSHA has determined that a significant risk exists and that
such risk can be reduced or eliminated by a proposed standard, it must
set a standard ``which most adequately assures, to the extent feasible
on the basis of the best available evidence, that no employee will
suffer material impairment of health * * *.'' 29 U.S.C. 655(b)(5). The
Supreme Court has interpreted this section to mean that OSHA must enact
the most protective standard possible to eliminate a significant risk
of material health impairment, subject to the constraints of
technological and economic feasibility. American Textile Manufacturers
Institute, Inc. v. Donovan (ATMI), 452 U.S. 490 (1981). The
``feasibility'' constraint has also been described simply as limiting
standards to requiring only what is ``capable of being done'' or
``achievable.'' Id. at 508-509. The Court held that ``cost-benefit
analysis is not required by the statute because feasibility analysis
is.'' Id. at 509. The Court stated that the Agency could use cost-
effectiveness analysis and choose the less costly of two equally
effective standards. Id. at 531 n.32.

A. Finding of Significant Risk

In United Steelworkers of America v. Auchter, 763 F.2d 728, 735 (3d
Cir. 1985), the U.S. Court of Appeals for the Third Circuit concluded,
as a threshold matter, that the hazard communication rule is a section
6 standard under the Act which is aimed at correcting a particular
``significant risk'' in the workplace. The HCS is not ``merely an
enforcement or detection procedure designed to further the goals of the
Act generally.'' Id. (quoting test for distinguishing standards from
regulations first explained in Louisiana Chemical Ass'n v. Bingham, 657
F.2d 777, 782 (5th Cir. 1981)). See also Associated Builders &
Contractors v. Brock, 862 F.2d at 67.
The practices mandated by the standard--hazard evaluations, written
hazard communication programs, labels and other forms of warning,
material safety data sheets, and information and training--are, at
bottom, directed not merely at the identification of workplace
chemicals, but more significantly at the correction of their hazards as
well. This correction will occur largely as a result of employee
compliance with instructions on how to protect themselves when exposed
to hazardous chemicals that are an integral part of any hazard
communication program, as well as by other hazard-reducing strategies
adopted by employers when they become more aware of the hazards in
their workplaces (e.g., chemical substitution). And because the record
clearly indicates that inadequate communication about serious chemical
hazards endangers workers, and that the practices required by this
standard are necessary and appropriate to the elimination or mitigation
of these hazards, the Secretary is able to make the threshold
``significant risk'' determination that is an essential attribute of
all permanent standards. The Third Circuit Court of Appeals agreed that
``inadequate communication is itself a hazard, which the standard can
eliminate or mitigate.'' United Steelworkers v. Auchter, 763 F.2d at
735.
A number of commenters have questioned OSHA's general finding of
significant risk. These commenters argue that OSHA needed to find
significant risk: (1) For each industry covered (e.g., Ex. 84
(construction)); (2) for each chemical covered (e.g., Ex. 11-129 (grain
dust)); and (3) for each exposure situation (e.g., Ex. 85 (mixtures,
articles)). Although these comments are addressed in more detail in
Part III of this preamble where the rule is summarized, briefly, it is
clear from the relevant court decisions that these specific findings
are not required for a standard such as this, where the risk of
inadequate knowledge is the same in every application of the standard.
In Associated Builders & Contractors v. Brock, 862 F.2d 63 (1988),
the Third Circuit responded to the first two complaints against OSHA's
significant risk finding. The Court noted that the general significant
risk finding for the original 1983 rule was appropriate for the entire
manufacturing sector, even though OSHA did not make individual findings
for each of the twenty major Standard Industrial Classification (SIC)
Code manufacturing subdivisions. Id. at 67. The Court concluded that
``[t]here is no more obvious need for industry specific significant
risk determinations for the [non-manufacturing] industries than for
subdivisions of the manufacturing sector.'' Id. at 67-68. The Court
held that for this ``performance-oriented information disclosure
standard covering thousands of chemical substances used in numerous
industries * * * the significant risk requirement must of necessity be
satisfied by a general finding concerning all potentially covered
industries. A requirement that the Secretary assess risk to workers and
the need for disclosure with respect to each substance in each industry
would effectively cripple OSHA's performance of the duty imposed on it
by 29 U.S.C. 655(b)(5); a duty to protect all employees, to the maximum
extent feasible.'' Id. at 68. OSHA was not required to assess
individually the significant risk that would be alleviated by the HCS's
application to each of the seventy major business classifications, much
less for each of the hazardous substances used in those industries.
As for arguments that OSHA should only apply the HCS where chemical
exposures pose known significant risks (e.g., Ex. 85), the Agency
concludes that neither the record evidence nor policy considerations
support such an approach. The record shows that although chemical
manufacturers or importers may know, in principle, the use to which
their product will be put, they generally do not know enough about
downstream operations to make reliable predictions about downstream
exposure levels. Therefore, information must be provided for all
hazardous chemicals to which employees may be exposed, regardless of
any judgments by the chemical manufacturer or importer about possible
levels of risk. 48 FR 53295, 53296, 53307. Furthermore, to allow
chemical manufacturers or importers to edit hazard information based on
their predictions of the extent of downstream exposures is to deprive
downstream employers and employees an opportunity to make an effective
assessment of potential hazards based on complete information on the
individual chemical and in light of any possible additive or
synergistic effects that may be posed by the presence of other
hazardous chemicals in the workplace. Id. at 53295, 53323. OSHA finds
that workers would be threatened with a significant risk of harm if
chemical manufacturers or importers are allowed to delete hazard
information based on a presumption of downstream risks, thus depriving
downstream employees and employers from having complete information on
which to base their decisions regarding control measures. See, General
Carbon Co. v. OSHRC, 860 F.2d 479 (DC Cir. 1988).
In addition, in light of Sec. 6(b)(7) of the Act requiring OSHA to
``insure that employees are apprised of all hazards to which they are
exposed,'' the Agency concludes that employees must be informed about
all potential hazards before the worker is exposed to them and not only
when there is overexposure. Linking HCS applicability to downstream
exposures posing a significant risk is contrary to the standard's very
purpose: to change downstream employer and employee behavior before
adverse health effects occur. 48 FR 53296. OSHA has concluded that
imposing informational requirements is necessary and appropriate to
protect workers even when OSHA has not determined that the level of
risk at a particular worksite warrants a substance-specific standard
that would employ more elaborate types of controls. Cf. Associated
Builders & Contractors, 862 F.2d at 67-68; United Steelworkers, 819
F.2d at 1269-70.

B. Finding of Feasibility

OSHA originally chose to direct the HCS to employers in
manufacturing, based on what were believed at that time to be relevant
policy considerations. The Third Circuit held that ``[o]nce a standard
has been promulgated, however, the Secretary may exclude a particular
industry only if he informs the reviewing court, not merely that the
sector selected for coverage presents greater hazards, but also why it
is not feasible for the same standard to be applied in other sectors
where workers are exposed to similar hazards.'' United Steelworkers,
763 F.2d at 738. Therefore, because inadequate communication of
chemical hazards is itself a significant risk, id. at 735, OSHA was
required by the Court order to apply the HCS to all workplaces where
employees are exposed to chemical hazards, to the extent feasible.
The feasibility question raised by the HCS is not difficult to
resolve. This standard does not relate to activities on the frontiers
of scientific knowledge; the requirements are not the sorts of
obligations that approach the limits of feasibility. Associated
Builders & Contractors, 862 F.2d at 68. The record on which the
original and expanded HCS's were based did not contain credible
evidence that the HCS would be technologically or economically
infeasible for any industrial sector, id., and there was substantial
evidence of feasibility, 52 FR 31855-58.
Part III of this preamble addresses in more detail the comments
which argue that individual requirements of the rule are infeasible
(e.g., Exs. 29 (distribution of MSDSs by wholesalers); 32 (provision of
MSDSs at construction sites)). As a general matter, however, OSHA
concludes that there is substantial evidence in the record that the
performance-oriented, informational provisions of the HCS are capable
of being done, and will not threaten any industry's ``long-term
profitability,'' ATMI, 452 U.S. at 531 n.55.
Certainly, the technical expertise needed to develop the chemical
hazard information is feasible for producers of the hazardous
chemicals. See, e.g., 48 FR 53296-99. Likewise, there are no
technological barriers preventing implementation of the other HCS
requirements, in that they are conventional and common business
practices that are administrative in nature. 52 FR 31855.
Moreover, OSHA concludes that the HCS administrative requirements
can be economically incorporated into present practices. OSHA believes
all businesses that produce, distribute, and use chemicals can ensure
that their containers are maintained with proper hazard warnings just
as these businesses would maintain labels or markings on containers to
ensure that downstream purchasers and workers handling or using the
chemicals comprehend the containers' contents and intended uses. Hazard
information can be sent from supplier to user just as suppliers are
able to send the chemical product itself to the user. All employers are
able to acquire and maintain up-to-date MSDSs for hazardous chemicals
just as they are able to acquire and maintain up-to-date cost
information and performance specifications on those very same products.
OSHA also concludes it is feasible for employers to inform and train
workers regarding chemical hazards present in the workplace just as
employers are capable of instructing and training their workers to
perform their jobs in an efficient and speedy manner. 52 FR 31856-57.
OSHA concludes that the record contains substantial evidence of the
economic feasibility of the HCS, including such evidence as: (1) The
numerous examples of compliance in all industries (see, e.g., id., Ex.
4-169 (71% of the 42,779 manufacturing facilities inspected by OSHA
from the initial compliance date to Feb. 1988 in full compliance; of
those cited for violating the HCS, majority had a hazard communication
program although it was deficient in some respect)); (2) the similar
implementation of other Federal communication laws and of state laws
(see, e.g., Ex. 4-183 (some 1000 employers inspected by Maryland Apr.
1, 1987 to Mar. 31, 1988, in total compliance with state law; over 1100
non-manufacturing workplaces inspected by Tennessee Oct. 1, 1987 to
June 30, 1988, in total compliance), 4-184 (over 16,000 establishments
inspected by Washington Jan. 1, 1987 to Dec. 31, 1987, in total
compliance)); (3) the detailed regulatory impact and regulatory
flexibility analyses which concluded that the costs associated with the
HCS were negligible in relation to revenues and profits of affected
industries (Ex. 4-1, 4-2. See also 52 FR 31867-76, 53 FR 29846-49); and
(4) the development of numerous guidelines and consultative services
offered by the Federal Government, States, trade associations, unions,
professional organizations, and private consultants (see e.g., 52 FR
31857, 53 FR 29848; Exs. 4-116, 4-118, 4-121, 4-122, 4-123, 4-128, 4-
129, 4-130, 4-137, 4-138, 4-139, 4-144, 4-147, 4-148, 4-149, 4-150, 4-
151, 4-154, 4-157, 4-158, 4-159, 4-160, 71-16, 71-55, 71-58, 71-61.)
OSHA has tailored the standard for a number of manufacturing and
non-manufacturing operations to ensure that its requirements are
feasible and effective in protecting all workers. See 52 FR 31858. Cf.
452 U.S. at 531, n.32 (OSHA can choose the less costly of two equally
effective standards.) Modifications adopted in this final rule also act
to tailor the rule to be more effective by incorporating language which
clarifies the requirements.

III. Summary and Explanation of the Issues and the Provisions of the
Final Rule

The regulatory text presented in this document reprints the entire
final rule with the adopted modifications incorporated into the
existing provisions. However, the discussion which follows is limited
to the adopted changes and related issues raised in the record. It does
not provide a complete summary and explanation of all of the provisions
of the rule--for such information interested parties should refer to
the preambles of the original (48 FR 53334-40) and revised (52 FR
31860-67) final rules.
While the primary purpose of publishing the NPRM was to resolve the
issues raised by OMB and presented in the proposed and alternative
provisions, OSHA also invited comment on other related issues. (As
described in the background section above, due to a decision issued by
the U.S. Court of Appeals for the Third Circuit, subsequently upheld by
the U.S. Supreme Court, the OMB disapproval has been invalidated.) In
reopening the record, OSHA recognized that it was not operating ``on a
clean slate.'' In developing the revised final rule in 1987, OSHA had
the benefit of an extensive evidentiary record. In addition, the
Agency's experience gained under the original standard, as well as
under state standards, some of which already applied to the
nonmanufacturing sector, further supported OSHA's regulatory approach.
OSHA continues to believe that the record substantially justifies the
Agency's regulatory choices, and the information presented to OSHA
since the standard was issued in 1987 has not convinced OSHA that
significant changes are warranted to comply with the OSH Act. This
final rule reflects that position. There are no substantial changes in
the requirements, and OSHA is simply promulgating clarifications and
modifications to enhance compliance.
As noted in the NPRM, OSHA retains ``almost unlimited discretion to
devise means to achieve the Congressionally mandated goal.'' United
Steelworkers of America v. Marshall, 647 F.2d 1189, 1230 (D.C. Cir.
1980), cert. denied, 453 U.S. 913 (1981). Accord, Building and
Construction Trades Dept., AFL-CIO v. Brock, 838 F.2d 1258, 1271 (DC
Cir. 1988). As the Agency determined at the time of the original final
rule in 1983 that all employees exposed to hazardous chemicals are at
significant risk of experiencing adverse health effects without the
protections of the HCS, OSHA is statutorily required to extend those
protections to those employees unless it can be shown that the
requirements are not feasible (i.e., they are not capable of being
done). In the 1987 revised final rule, OSHA determined that the
provisions are feasible in all industries. The rule's requirements had
thus been determined by OSHA to be both necessary for the protection of
all workers exposed to hazardous chemicals (i.e., they would mitigate a
significant risk of exposure), as well as capable of being done (i.e.,
are technologically and economically feasible). As a result of these
determinations, OSHA published the NPRM with the stated expectation
that the standard would not be changed significantly in this final rule
unless the Agency received substantial evidence during the rulemaking
that a regulatory modification was clearly necessary. This necessity
would have to be based on evidence that the 1987 standard is
demonstrably infeasible in a specific respect, or that the proposed
alternative would significantly increase the standard's intended safety
and health benefit or significantly improve its cost-effectiveness.
As will be discussed in detail below, the information submitted
during this rulemaking proceeding has convinced OSHA that its
regulatory choices are supported by substantial evidence and that
significant changes to the rule are unnecessary. However, some of the
comments do reflect a lack of understanding of the requirements and of
what is necessary for proper implementation of an acceptable program.
Hence OSHA is taking the opportunity in this final rule to incorporate
modifications to clarify such provisions and enhance compliance.
The discussion of the record which follows is organized in the
order the subjects are addressed in the standard for ease of reference.

Scope and Application

Coverage of all industries. As OSHA described in the preamble to
the revised final rule (52 FR 31855-59), expansion of the protections
afforded by the HCS to all nonmanufacturing industries is supported by
the rulemaking record. Evidence collected by OSHA indicates that there
is chemical exposure occurring in every type of industry covered
(although every employee may not be exposed), and that employees
exposed to hazardous chemicals without knowledge of their identities,
hazards, and appropriate protective measures are at a significant risk
of experiencing adverse effects from such exposures. Furthermore, it is
the Agency's position that all such employees are entitled to
information regarding the chemical hazards they are exposed to in the
workplace (i.e., that they have a fundamental right to know this
information), and that a uniform Federal hazard communication standard
is the best method to ensure that it is provided. OSHA's regulatory
requirements in this regard are consistent with the mandate of the Act
(to protect all employees to the extent feasible), as well as with the
Court's decisions upon review of the rule.
Despite these explicit determinations by OSHA in 1983 and 1987, as
well as by the Third Circuit in its decisions (subsequently upheld by
the Supreme Court), and a subsequent reiteration of this determination
in the NPRM, there were still some comments submitted which suggested
that certain industrial sectors should be exempted from the rule, or
only covered by limited provisions. The majority of these were from
representatives of the construction industry, and from distributors of
hazardous chemicals. The arguments generally involved the degree of
risk encountered in the industry, and the feasibility of the
requirements. OSHA has not found the arguments regarding infeasibility
to be persuasive, nor is there any justification for lessening the
protections afforded employees in the industries in question.

Coverage of the Construction Industry

Significant risk--industry perspective. As was described in the
preamble to the NPRM, representatives of the construction industry
submitted comments objecting to coverage under the revised final rule
(53 FR 29827). They argued that the rule's protections were not
required in their industry as exposures to hazardous chemicals did not
present a significant risk to workers, and construction employees are
already required to be trained under the existing construction training
standard, 29 CFR 1926.21. Therefore, according to these commenters,
whatever risk there is has already been mitigated by the existing
training, and any incremental risk remaining is not significant enough
to warrant coverage under the HCS.
The comments and testimony received subsequent to the publication
of the NPRM reiterate and expand upon this position. For example, a
number of commenters opposed the rule in its entirety, suggesting that
it is too burdensome, construction is already adequately covered, and
the requirements are not appropriate for construction. See, e.g., Exs.
11-9, 11-24, 11-29, 11-114, and 11-142. ``We believe an extension of
the Hazard Communication Standard to the non-manufacturing sector is
unwarranted and burdensome. Construction workers simply do not face a
significant risk of material harm from exposure to chemicals, and the
standard is infeasible for the construction industry to implement.''
Ex. 11-114.
A number of commenters suggested that construction should not be
covered since workers in this industry only use hazardous chemicals for
short periods of time, the quantities they use are small, and they
usually work outdoors (see, e.g., Exs. 11-1, 11-73, 11-84, and 11-97).
Similarly, other commenters suggested that only a few chemicals
used in construction are hazardous, and thus may warrant providing the
protections of hazard communication to exposed workers (Ex. 11-4,
asbestos is hazardous and employees should be trained regarding its
hazards). It was also suggested that the definition of what constitutes
a hazardous chemical be limited under the rule (Ex. 11-6), and that
OSHA cannot cover the only chemicals that pose a true hazard to workers
on the construction job site (Ex. 11-114, natural gas seepage).
The majority of the construction industry commenters stated that
there is no significant risk in the industry that requires coverage by
the HCS. The Associated General Contractors of America (AGC) (Ex. 11-
135) suggested to its members that comments submitted to OSHA in
response to the NPRM address whether the company believes construction
workers face a significant risk of material harm from exposure to
chemicals; whether the standard would reduce whatever risks from
hazardous chemicals do exist; and whether the rule is feasible. These
commenters uniformly responded to AGC's request for this information to
be submitted to the record by stating that there is no significant risk
in construction, the rule would not reduce whatever risks there are,
and the burdens are substantial (see, e.g., Exs. 11-12, 11-18, 11-20,
11-26, 11-36, 11-83, 11-97, 11-135, and 11-157). (The AGC surveyed its
membership to collect information regarding their opinions on the HCS
and associated burdens. At the time their comments were submitted, only
102 responses had been received from the 8,000 members that are general
contractors. Ex. 11-135.)
Most did not provide any specific comments on provisions of the
rule, or suggestions for solutions to the problems they identified,
other than exempting the construction industry from coverage. Providing
no evidence or substantiation for their opinions, they simply stated
that there is no significant risk, the risk would not be alleviated by
implementation of the rule, and the burden would not be feasible. For
example, at least six of this type of response were received from
officers of Charlie's Acoustical Systems, Inc. (Exs. 11-16, 11-18, 11-
19, 11-20, 11-26, 11-27, and 11-28). ``Chemicals on the construction
site are not a significant risk and the manufacturing standard is an
infeasible program to implement.'' Ex. 11-26.
The conclusions of some of the commenters on the issue of
significant risk are apparently based on their own organizations'
reports of illnesses and injuries caused by chemical exposures.
According to these industry representatives, the number of injuries
reported that are due to chemical exposures is small, and those which
do occur are caused by well known hazards (such as burns caused by
handling wet concrete). They further contend that the HCS would not
alleviate any of those injuries caused by well-known hazards since no
new information would be presented to workers. ``[T]he majority of
chemical injuries were the result of exposure to concrete. This work is
done by union workers with years of experience in this field. It is
highly unlikely that training and MSDSs would reduce concrete burns or
rashes. Most of which are an allergic reaction.'' Ex. 11-73.
An additional argument is that chemicals are already handled safely
on construction sites (Exs. 11-9, 11-83, and 11-142), and in
particular, that compliance with existing training requirements in 29
CFR 1926.21 results in adequate information being given to workers
about hazardous chemicals. ``With regard to regulating the few
chemically related injuries that do occur, OSHA's existing standards
regarding employee training (1926.21(b) 2 through 6) address these
sufficiently.'' Ex. 11-83.
In its brief summarizing the record, the AGC cites the testimony of
various construction contractors indicating that training is already
conducted as proof that no additional information is necessary (Ex.
84). They further discount reports of incidents of chemical injuries
occurring: ``AGC does not contend that there are no chemical hazards in
construction. Rather, AGC maintains that the hazards which exist are
well known to employers and employees alike, and that those hazards do
not occur with a frequency or intensity which merit the elaborate
mechanisms of the revised HCS.''
The AGC also argues that the degree of safety and health training
unions have in their apprenticeship training programs also indicates
how significant workers consider the risk to be in their particular
industry (Ex. 84). ``During the hearing, AGC sought to ascertain from
the Building and Construction Trades Department, AFL-CIO (BCTD), how
seriously its members take the risk of chemical exposure in
construction, by inquiring whether this issue is covered in
construction union apprenticeship programs. Unfortunately, BCTD refused
to provide any such information, and even objected that the question
was irrelevant. Tr. 12/13/88 pp. 134-136. It would appear, however,
that if BCTD truly believes that chemical hazard exposure is a major
risk to workers, it would readily have introduced evidence showing the
emphasis placed on these concerns in apprenticeship training. The
failure to produce any such evidence, coupled with an objection to its
relevance, speaks volumes.'' (Quoted without footnotes.)
Construction industry representatives also contend that statistics
cited by OSHA regarding the incidence of chemical source illnesses and
injuries verify that the risk in construction is not significant (see,
e.g., Ex. 11-142). By their interpretation, the number of illnesses and
injuries is too low to warrant the coverage of the HCS.
Significant risk--employee perspective. Representatives of
construction workers participating in the rulemaking do not appear to
agree with the AGC's contention that the hazards they face are well
known to them, and do not warrant coverage under the HCS. In its brief
summarizing the record (Ex. 89), the Building and Construction Trades
Department (BCTD) of the AFL-CIO states that ``although the skin rashes
and other chemical incidents these employers report are certainly of
concern, there are a myriad of other, far more serious illnesses which
our members suffer as a result of exposures on the job.'' The BCTD
further elaborates by citing scientific studies in the record (Ex. 67,
submitted by the Sheet Metal Workers' International Association) which
give epidemiological evidence of illnesses occurring in construction
workers due to workplace exposures: ``For example, welders suffer from
acute and chronic respiratory disease, and show increased rates of lung
cancer of up to 74% after 20 years in the trade. Painters, plumbers and
floor-layers experience skin conditions, as well as serious central
nervous system problems from exposures to solvents. Employees working
with man-made mineral insulation suffer from bronchitis; roofers have
skin and eye problems, in addition to increased cancers; and masons
suffer from silicosis and lung cancer. Indeed, some of these problems,
rather than being minimized by outdoor work, are exacerbated by
exposures to sunlight.'' (Quoted from Ex. 89 without footnote cites.)
In response to questions raised during their oral testimony, the
BCTD also addressed the issue of underreporting of illnesses and
injuries in construction by reference to the National Academy of
Sciences study on reporting of illnesses and injuries (Ex. 41): ``That
National Academy of Sciences study did dramatically find an under-
reporting of illnesses in the construction industry.'' Tr. 6-97.
Another report on recordkeeping prepared by the Keystone Center was
also referred to: ``And it was agreed upon by that Keystone Center, in
their report, that there are serious under-reporting of illnesses in
the construction industry. Actually, across all industries, but more
notably the construction industry, because of the latency of most of
the illnesses.'' Tr. 6-97-98.
The Sheet Metal Workers stated in their testimony: ``We, in the
Sheet Metals Workers', our contractors, and others in construction
unions, know that many more health hazards exist on a construction site
than is generally believed.'' (Tr. 5-100.) The testimony further
pointed out that products that were once considered to be fairly safe
(e.g., asbestos) were later found to be highly hazardous. ``As we
attempt to cope with the problems of our members with asbestos disease,
we are also watching closely research which is unfolding around man-
made mineral fibers. Within the past year, Johns-Manville and Owens-
Corning have modified their material safety data sheets to recommend
the use of respirators for those working around its fiberglass
products.'' (Tr. 5-101-2.) Other substances of concern include those in
welding fumes, and propellents in adhesives used in asbestos removal
work (such as methylene chloride)(Tr. 5-102). ``We want to share in the
same protections from those and other health hazards that OSHA offers
to our union sisters and brothers, and those in other walks of life.
For many obvious reasons, we can't allow the same, or similar kinds of
exposures to happen to yet another generation of sheet metal workers.''
(Tr. 5-102)
Another employee representative asked the Coalition panel to
comment on the conclusion of the NAS report, which was read into the
record as follows (Tr. 5-87-9): ``The only illness data from the BLS
annual survey that might be useful for any purpose, may be those on
occupational skin diseases, all other illnesses included on the annual
survey form are under-reported and can be used only with great
caution.'' The conclusion of the report was further quoted as reading:
``For all of these reasons, data on occupational illnesses in the
annual survey, other than those for skin diseases, are understated to
the point that they are more misleading than useful.'' The panel
declined to comment on this conclusion. The study was entered into the
record (Ex. 41).
The AFL-CIO also addressed the issue of significant risk in
construction in their oral testimony: ``Contrary to the OMB and
industry claims, it is clear that chemicals do pose a significant risk
to construction workers and to workers at multi-employer worksites--
paints, solvents, heavy metals, adhesives, put painters, iron workers,
and roofers at serious risk of disease. And these workers, like other
workers, exposed to toxic chemicals, should receive the full
protections of the standard.'' Tr. 7-44.
Significant risk--OSHA's findings. As has been discussed previously
in this preamble, as well as in the preambles to the final rules in
1983 and 1987 and the Third Circuit litigation on the HCS, OSHA has
determined that there is a significant risk to all workers exposed to
hazardous chemicals without benefit of information regarding those
hazards, the identities of the chemicals, and associated protective
measures.
This finding of significant risk applies to construction employment
as well as to every other type of industry regulated by OSHA. The sole
difference in construction is that those employers in complete
compliance with the existing construction training standard (29 CFR
1926.21) will have already done most of the training required under the
HCS. Therefore, the burden of compliance is less for construction than
for any other of the nonmanufacturing industries.
Although the AGC claims in its post-hearing brief that ``the
rulemaking record as a whole does not support the finding that the
standard is reasonably necessary to reduce significant risk'' in the
construction industry (Ex. 84), OSHA does not agree. The AGC cites as
its primary evidence the statements made by its own representatives and
those of other industry sources that the rule is not needed. OSHA
believes that the record accumulated since the 1987 rule was published
amply demonstrates that the majority of the participating
representatives of the construction industry do not want the rule to
apply to them. That, however, is quite different than demonstrating
that the rule is neither necessary nor feasible in the construction
industry. OSHA does not believe that the record evidence supports
either of those conclusions.
As OSHA established in the 1983 final rule (48 FR 53284-86),
thousands of chemical source illnesses and injuries are reported
annually in the construction industry. The numbers are substantial, and
yet all scientific indications are that the illnesses are probably
grossly underreported (47 FR 12094-95; 48 FR 53284-86; Ex. H-022: 17;
Exs. 4-1 and 4-2; Ex. 4-70; Ex. 4-44; and Ex. 41).
The Coalition of Construction Trade Industry Associations
(hereinafter referred to as ``the Coalition'')(Ex. 11-142) claims that
the reported incidence rate of chemically-related illness is too low to
be considered significant. This is not true. In fact, construction is
third after agriculture and manufacturing in terms of incidence rates,
and thus exceeds the rates of all other nonmanufacturing industries (48
FR 53285).
This has occurred despite the fact that in construction there are a
number of factors which tend to contribute to the underestimation of
chemical source illnesses and injuries. The transient nature of the
workforce minimizes the likelihood that any illness or injury that does
not produce an immediate, acute effect (such as concrete burns) is
identified and reported. Since a worker may not report back to the same
workplace the day after an exposure, even a number of acute effects
would be unreported. Thus any effect which has a latency period of more
than one day will generally not be included in the illness and injury
log and linked to occupational exposures. This is aptly demonstrated by
the anecdotal reports of injuries being limited to concrete burns and
similar ailments (Ex. 11-135; Tr. 6-20, 21; Tr. 6-28), while the
scientific epidemiological data based on studies of exposed
construction workers whose health status was followed over longer
periods of time reveal the incidence of serious, chronic health effects
(Ex. 67).
The ability of employers to identify occupational illnesses with
chemical exposures is always a concern, particularly since the effects
of exposure are effects which may also be caused by other factors. As
cited in the original NPRM preamble (47 FR 12094), the Bureau of Labor
Statistics (BLS) noted this reporting disparity in its annual report.
``The recording and reporting of illness continue to present some
measuring problem since employers (and even doctors) are often unable
to recognize some illnesses as being work related. The annual survey
includes data on only current and visible illnesses of workers; it does
not include data on illnesses which might surface later.''
So if workers being exposed to solvents have headaches and feel
nauseous, this may not be identified as being caused by their chemical
exposures when in fact they are experiencing central nervous system
depression. Part of the purpose of the HCS is to increase awareness
regarding these potential effects. In fact, improved reporting of
occupational illnesses and injuries caused by chemical exposures is
expected to be one of the positive effects of the HCS.
The comments and testimony submitted by the construction industry
suggest that some construction employers are either unaware of the
extent of potential hazardous effects in their industry, or are
attempting to minimize the evidence of the seriousness of the types of
effects which may occur as a result of employee exposure. For example,
Trio Construction Services, Inc. (Ex. 11-100) supports an exemption for
the construction industry ``because the construction industry is not a
user of today's highly toxic materials, chemicals, carcinogens,
explosives, etc.'' And yet Trio indicates further that their company
uses ``gasoline, kerosene, fuel oil, WD-40, paints, lacquers, thinners,
adhesives, concrete, oxygen and acetylene to name a few.'' By the
definitions of hazard in the rule, the types of chemicals cited do
indeed include ``highly toxic materials, chemicals, carcinogens * *
*.''
Similarly, the Ruhlin Company (Ex. 11-97) argues that ``many
chemicals utilized by Construction Contractors such as water
repellents, form release agents, concrete sealers, solvents, adhesives,
bonding agents, epoxy resins, linseed oil and curing compounds are non
toxic * * *'' This too reveals a lack of information regarding the
hazardous properties of chemicals as these types of products commonly
include numerous hazardous chemicals.
The AGC itself admitted in a newsletter to its members that there
are 82 hazardous chemicals employees involved in concrete work may be
exposed to, including such potential carcinogens as benzene and vinyl
chloride (Ex. 4-98). In addition, an AGC representative submitted about
400 MSDSs with his notice of intent to appear at the public hearing
(Ex. 13-39), including MSDSs for a number of the chemicals listed by
Trio and Ruhlin above. The hazards of the chemicals covered by those
MSDSs cover a full range of health effects, as well as physical
hazards.
Clearly, these comments and references indicate that chemical
exposures in the construction industry are extensive, and that the
hazards are not apparently as ``well known'' as the AGC has indicated
(Ex. 84).
The industry representatives argue that the transient nature of the
work force must result in unique treatment of the industry from a
regulatory standpoint, yet they do not seem to recognize that the same
industry characteristic results in an underestimation of the magnitude
of the problem with respect to chemical exposures.
For example, they argue that exposures are, in essence, relatively
isolated instances of brief duration. There is no recognition in their
comments that painters exposed on one site today and another tomorrow
throughout their working careers have a significant cumulative dose of
chemical exposures. In the industry's perspective, viewing exposures as
a finite occurrence, the need for the standard is limited and the
possibility of disease occurring as a result is remote. In fact,
professional trade workers generally use the same types of chemicals
from job to job (although the specific constituents may vary) and their
potential for long-term substantial exposure is significant. (The
industry representatives use the similarity of job exposures to argue
for ``portability'' of training, yet do not seem to recognize that it
contributes to the occurrence of chronic disease that is not reported.)
The arguments that the work is completed outdoors and is therefore
insignificant are also not persuasive. (See, e.g., Ex. 11-91.) Much
construction work is finish or repair work that is conducted indoors,
and significant exposures can occur. Outdoor exposures are not
guaranteed to be low. A recent article describing exposure to lead at
an outdoor site found that the measured levels far exceeded legal
limits (Ex. 71-31). No industry representatives submitted exposure data
to support their contentions, and it is highly likely that such data do
not exist as many of these employers do not generally measure for
exposures.
In fact, according to the Coalition, employers don't need
permissible exposure limit information on MSDSs because they don't
understand it anyway and apparently aren't interested in learning about
it (Ex. 11-142). ``Nearly all MSDSs provide PELs or TLVs (Threshold
Limit Values); none of the labels do. Neither employees nor employers
are trained chemists. Since they are incapable of quantifying job-site
exposures, PELs and TLVs are useless to them.'' Of course, PELs are
legally established exposure limits that must not be exceeded. The
purpose of including them on an MSDS is to ensure the downstream
employers and employees are alerted to the fact that the product
contains a chemical that is regulated, and thus proper protective
measures must be implemented.
AGC's argument that the significance workers attach to the risks of
chemical exposures can be determined by the number of hours included in
union apprenticeship training programs is spurious at best (Ex. 84).
And despite AGC's claims to the contrary, the BCTD's refusal to respond
to AGC's inquiries regarding such programs does not indicate that its
members do not consider the issue to be important (Tr. 6-134-36). As
counsel for the BCTD indicated, ``the employer has the responsibility
to ensure safety on the work site, and that includes the safety
training and hazard communication identification.'' (Tr. 6-135.)
Nevertheless, a member of the BCTD panel had already addressed
knowledge gained in apprenticeship programs (Tr. 6-91-3), and in
response to similar inquiries from the AGC, both the Sheet Metal
Workers (Tr. 5-113-14; Ex. 81) and the AFL-CIO (Tr. 7-77-78) confirmed
that such training is in fact included in union programs, and that the
emphasis on such information has increased in recent years.
There were suggestions in the record that unions be required to
assume some of the compliance burden. The Flat Glass Marketing
Association indicated that unions should be held responsible for
training since the contractors frequently hire employees from union
halls (Ex. 11-152). ``There is no reason why OSHA should not require
the unions to include in their apprenticeship training programs courses
on hazardous chemical identification, detection, and treatment. The
unions should be required to cooperate with the employers in developing
and conducting such programs insofar as they deal with communicating
the hazards of chemicals on the job site.''
The reason that this is not a viable option for the HCS is that
OSHA has no authority under the Act to compel employees or their
representatives to provide training. Although section 5(b) of the Act
requires ``[e]ach employee comply with all occupational safety and
health standards and all rules, regulations and orders issued under the
Act'' that are applicable, Congress ``[did] not intend the employee-
duty * * * to diminish in any way the employer's compliance
responsibilities or his responsibility to assure compliance by his own
employees. Final Responsibility for compliance with the requirements of
this [A]ct remains with the employer.'' S. Rep. No. 1282, 91st Cong. 2d
Sess. 1-11 (1970). OSHA cannot sanction employees or their
representatives for failure to provide training. Atlantic & Gulf
Stevedores v. OSHRC, 534 F.2d 541 (3d Cir. 1976).
In addition, since the majority of employees working in this
country are not members of unions, such an approach would be
ineffective for the great majority of worksites in any event. However,
as OSHA has stated a number of times with regard to the training
requirements of this rule, the HCS only requires each employer to
ensure that training has been provided to employees. If employers and
employee representatives in a particular area agree to some sort of
centralized training program so that training on the jobsite will be
minimal (limited to the information that is specific to that site), the
rule is flexible enough to permit that type of approach. Indeed, OSHA
encourages joint efforts where possible because such partnerships
result in better and more efficient information transfer. (See, e.g.,
Exs. 4-63, 4-75.) Employers will be held accountable for the adequacy
of the training provided, but need not present all of the information
themselves.
Reduction of Risk Through Current Training Requirements. Although,
as has been described herein, the construction industry representatives
claim that the risk of exposure to chemicals in construction is not
``significant,'' this conclusion is coupled with the contention that
the existing training requirements (29 CFR 1926.21) alleviate whatever
risk there may be (see, e.g., Exs. 11-135, 11-142 and 84).
The construction training requirements that apply to chemicals may
be summarized as follows:
(b)(2) The employer shall instruct each employee in the recognition
and avoidance of unsafe conditions and the regulations applicable to
this work environment to control or eliminate any hazards or other
exposure to illness or injury.
(b)(3) Employees required to handle or use poisons, caustics, and
other harmful substances shall be instructed regarding the safe
handling and use, and be made aware of the potential hazards, personal
hygiene, and personal protective measures required * * *.
(b)(5) Employees required to handle or use flammable liquids,
gases, or toxic materials shall be instructed in the safe handling and
use of these materials and made aware of the specific requirements
contained in subparts D, F, and other applicable subparts of this part
* * *.
(6)(i) All employees required to enter into confined or enclosed
spaces shall be instructed as to the nature of the hazards involved,
the necessary precautions to be taken, and in the use of protective and
emergency equipment required. The employer shall comply with any
specific regulations that apply to work in dangerous or potentially
dangerous areas.
(ii) For purposes of paragraph (b)(6)(i) of this section,
``confined or enclosed space'' means any space having a limited means
of egress, which is subject to the accumulation of toxic or flammable
contaminants or has an oxygen deficient atmosphere * * *.
As OSHA has indicated in its regulatory impact analysis (Ex. 4-1)
and in response to questions in the public hearing (Tr. 1-45), the
Agency estimated that approximately 75-80% of the training required
under the HCS is also required under the construction training
standards described above. Thus if a construction contractor was in
full compliance with Sec. 1926.21, the incremental training required to
complete compliance with the HCS would primarily be limited to the
requirements for explanation of the MSDSs, labels, and other features
of the employer's hazard communication program.
The primary difference between the two rules is that the
Sec. 1926.21 standard is very general and does not provide employers
with sufficient guidance to establish an adequate training program for
hazard communication. OSHA testified to this point in response to
questions raised at the public hearing, Tr. 1-47-8. This has been
pointed out repeatedly by members of the Advisory Committee on
Construction Safety and Health (ACCSH) (Tr. 6-78-9), and the Agency has
attempted to somewhat rectify the problems by providing additional
guidance in a compliance directive (Ex. 4-152). However, there are
still problems with enforcement due to the way the provisions were
drafted when adopted.
The AGC claims that its analysis of the enforcement statistics OSHA
entered into the record (Ex. 4-199) indicates that Sec. 1926.21 is one
of the most cited Agency rules (Ex. 84). As described in their post-
hearing brief, between fiscal year 1982 and fiscal year 1987, OSHA
issued 4,205 citations for violations of Sec. 1926.21(b), ``3,814 of
which were for Sec. 1926.21(b)(2) governing hazard training.'' A review
of the subparagraphs included in paragraph (b) raises questions
regarding the AGC's analysis. Subparagraph (b)(2) is a general one
which covers all types of hazards, including safety hazards such as
trenching, etc. The subparagraphs of primary relevance to chemical
hazard training are (b)(3) and (b)(5). When 90% of the citations that
have been issued for paragraph (b) involve subparagraph (b)(2), there
are clearly very few citations issued for subparagraphs (b)(3) and
(b)(5). In fact, in the 6 year period included in the statistics, only
156 citations were issued for violations of (b)(3) and (b)(5). (As a
point of reference, in 1990 OSHA issued over 5600 citations for
violations of the HCS training requirements. Over 4300 of those
violations were cited as being serious, and 32 were considered to be
willful.)
There is evidence in the rulemaking record that complete training
on chemical hazards is not widespread in the construction industry
despite the long-established requirements. As cited in the NPRM
preamble (53 FR 29827), the most compelling evidence is a BLS study
which indicated that only 23% of construction workers had been trained
regarding such hazards. The BLS report was based on a survey
administered to construction workers who had been injured on the job.
AGC cites the testimony of employer representatives during the
hearing as substantiating that sufficient training is occurring. In
OSHA's view, many of the submissions in the testimony and comments
support the Agency's position that the current state of chemical hazard
training in construction is not sufficient to protect employees.
Therefore, the additional training requirements of the HCS are
necessary.
Four employer representatives testified on behalf of the Coalition.
As a primary argument of construction industry representatives was that
current training sufficiently mitigates any risk of exposure that may
occur in construction, OSHA questioned these employers on present
practices. Specifically, the OSHA panelist asked each employer to
``tell me what kind of training you provide for your workers in
accordance with 1926.21, when you do it, and how you get the
information in order to do it.''
The first contractor initially indicated that his homebuilding firm
did not do any training (Tr. 5-43). He then modified his response to
indicate that the superintendents on the job were responsible for
training, and he didn't know what was included in the training program
(Tr. 5-44).
The second employer representative described in detail training
regarding scaffolding and other related safety issues for workers in
the masonry industries. When further questioned as to whether the
training included any information on chemical hazards as required under
Sec. 1926.21, he replied (Tr. 5-46): ``Not at this time. We have
conducted one session. We were cited on a Maryland job site through the
Maryland OSHA for not having, by their standards, a hazardous
communication program in place.'' He also did not appear to be aware
that in Delaware, where his firm is located, a state right-to-know law
was implemented prior to expansion of the HCS, and it covered
construction (Tr. 5-46, 5-60). It is likely his firm would have been in
substantial compliance with the HCS if it had complied with the
preexisting state law in Delaware. He further indicated later in his
testimony that he interpreted the current standard (Sec. 1926.21) as
covering safety hazards, and not training regarding chemical hazards
(Tr. 5-59-60).
The third employer was an electrical contractor, and he stated that
safety hazards related to electrical work are addressed in worker
training. Coverage of chemical hazards in current training was less
clear since he indicated there aren't many products of concern in the
electrical industry, and the employers are not sure what is a hazard
(Tr. 5-47). Apparently, employers are receiving MSDSs for many products
they use that are not actually hazardous chemicals covered by the HCS
(e.g., flashlight batteries). Products such as flashlight batteries are
exempted as articles under the rule, and thus do not have to be
included in training.
Only the fourth contractor employer on the Coalition panel, whose
business involved painting, appeared to have clearly included training
regarding chemical hazards in his program (Tr. 5-48).
The participants on the AGC's panel described chemical training
programs in their organization. The two contractor employers were from
states with pre-existing right-to-know laws (Vermont and Wisconsin),
and had apparently instituted training programs to comply with those
rules. Although they referenced training conducted prior to the right-
to-know requirements, it appeared to be safety training. There was no
description of chemical hazard training done in compliance with
Sec. 1926.21. Ex. 44.
As cited before, there are numerous indications in the comments and
testimony of the participants that the hazards in the construction
industry are not recognized by the employer representatives, thus it is
unlikely that adequate training is being done. (See, e.g., Exs. 11-97
and 11-100.) Comments submitted in response to the revised final rule,
for example, clearly indicate that companies were estimating compliance
burdens based on analyses that assumed no training had been done to
date (see, e.g., Exs. 5-10, 5-65, and 5-117).
As the ACCSH indicated in its 1980 report to OSHA regarding
occupational health standards for the construction industry (Ex. 4-4),
the construction industry's implementation of Sec. 1926.21 has been
hampered by lack of information regarding the hazards of the chemicals
in use. As OSHA noted in the preamble to the 1987 final rule (52 FR
31858-59): ``Of particular concern to the Committee at that time was
that construction employers do not have access to the necessary
information upon which to develop appropriate signs and labels or
material safety data sheets, and therefore must depend upon suppliers
for such information. `[C]onstruction employers may not always be aware
of the hazard associated with a particular product or device if the
items are not accompanied upon purchase by appropriate labels and data
sheets * * *.' OSHA agrees that this lack of information has been a
problem for all downstream users of chemicals, and thus developed the
approach incorporated into the HCS--producers or importers of chemicals
are responsible for evaluating the hazards and transmitting that
information to downstream employers or users of the materials. Under
the expanded rule, construction employers would be the recipients in
this downstream flow of information.'' The ACCSH further noted that
``such information was fundamental to the preparation of warning signs,
labels, training programs, and other important job safety and health
activities.''
OSHA's current rule is thus completely consistent with the ACCSH's
recommendations in this area. In fact, although the AGC (Ex. 84) and
the Coalition (Ex. 11-142) have repeatedly stated that the OSHA rule
``ignores'' the advice of the ACCSH, the record demonstrates that the
Agency has not only consulted the Committee but has also incorporated
their advice in a number of respects. The requirements of the rule for
labels, MSDSs available to employees on-site, and amplified training
programs are entirely consistent with substantive recommendations made
by the ACCSH in 1980, as well as when they reviewed the rule line by
line in 1987 (Exs. 4-6 and 4-186). Ex. 4-186 is an OSHA-prepared
working document in which the Agency took the ACCSH transcript from the
June 23, 1987 meeting that was a detailed review of the HCS, and
incorporated the suggested changes into the text of the rule to most
efficiently address the ACCSH comments. As noted in the preamble to the
1987 rule, a number of the suggestions made by the ACCSH were
incorporated into the regulatory text (52 FR 31858). At subsequent
meetings in 1987 (Ex. 4-74) and 1988 (Ex. 4-108), they further
reiterated their view that the rule as written be implemented.
Despite claims to the contrary, the record clearly shows that OSHA
has consulted the ACCSH repeatedly on this issue. And on the
substantive requirements, the Agency's rule has been entirely
consistent with the recommendations of the Committee. The only
difference of opinion in approach has been that the Committee would
like a separate standard to be promulgated, and the Agency has
maintained that such an approach is not appropriate on this particular
issue. A difference of opinion does not mean that the Agency has
ignored the advice of the Committee.
The AGC and the Coalition have not substantively addressed the
specific recommendations of the ACCSH, and have implied that OSHA has
not given the Committee an opportunity to present recommendations.
Close examination of the documents cited above that are related to
specific ACCSH reviews will reveal that the ACCSH's opinions have been
addressed by OSHA in the rule's requirements, and that these opinions
are quite different than those put forth by the industry
representatives who claim the ACCSH has not been properly consulted.
From the 1980 report to the most recent recommendations in November of
1988, the Committee has endorsed the need for a standard; confirmed
that such a standard is feasible; recognized that availability of
information on multi-employer worksites must be specifically addressed;
supported requirements for MSDSs, including their availability on site;
and emphasized the need for further training requirements. Thus it
appears clear that, unlike the AGC and the Coalition, the ACCSH's
recommendations for a vertical standard for construction did not mean a
rule that is less protective for construction workers than the rules
covering workers in other industries.
Employee representatives in the construction industry have also
consistently indicated that training is either not being done, or is
inadequate (see, e.g., Tr. 6-91-3). In response to a question, the
Sheet Metal Workers' representative indicated that the rule would
provide information about chemical hazards that they do not currently
have under existing regulations: ``Yes, there are adhesives that we are
not sure about, that are being used in ventilating systems for
coatings. And we are not necessarily sure what they are, except that
people will complain about noxious, or obnoxious gases on the job, for
example. And we don't know what they are.'' Tr. 5-115-16.
Thus the rulemaking record clearly indicates that the requirements
of the HCS are needed to supplement the provisions of Sec. 1926.21. As
has been discussed at length in the preamble to the original final rule
(see in particular 48 FR 53301, 53305-06, 53310), in order to ensure
that the information is effectively communicated, a hazard
communication program must include three components--labels, material
safety data sheets, and training. These provisions are interdependent,
serving different purposes and communicating the information in a
different way, thus improving the effectiveness of the program. (See
also H-022, Exs. 3 and 4; 52 FR 31855.) As indicated by the ACCSH, the
construction industry employers will benefit from the acquisition of
this information as it will enable them to enhance compliance with the
training provisions in Sec. 1926.21. As a result of the improved
programs, construction employees' significant risk of experiencing
adverse effects due to chemical exposures will be reduced. Associated
Builders & Contractors, 862 F. 2d at 68 (``We reject * * * the
contention by ABC and AGC that because the construction industry
already provides training in hazardous materials handling, there is no
significant risk in that industry. At best that argument establishes
the existence of risks, and the requirement for maintenance on the
jobsite of information on those risks can only make the existing
training more effective.'')
The training requirements of the HCS are more complete, and more
specific in terms of what is required. The additional requirements to
maintain labels and MSDSs supplied by the producers and distributors of
the products used will provide the employer with more information
regarding the hazards of the chemicals, identities, and appropriate
protective measures. Such information will enable the employer to
better protect workers from chemical hazards, as well as improve
existing training programs. They will also serve as a reference source
for workers to ensure that they truly have access to all applicable
information regarding that chemical. As discussed previously, this
standard is based primarily on the premise that all workers exposed to
hazardous chemicals have a right, and need, to know this basic
information.
Feasibility of the rule in the construction industry. In addition
to contending that there is no significant risk of exposure in the
construction industry, and that the pre-existing training rule
mitigates that risk sufficiently, industry representatives claim that
the rule as written is infeasible. See, e.g., 11- 36, 11-97, 11-98, 11-
114, 11-135, and 11-142. But see also Ex. 71-16: ``Compliance with the
OSHA Hazard Communication Standard will not be as difficult as it first
appears if you start now and follow an organized approach--in fact, you
may already have some procedures in place that comply with the
standard.'' (From compliance guidance manual prepared by AGC counsel.)
It is clear that these commenters sought to indicate the rule is
infeasible because the Court order to OSHA stated that the rule was to
be expanded unless the Secretary of Labor found it would be infeasible
to do so. OSHA explicitly determined that the rule is both
technologically and economically feasible to implement in all
industries. 52 FR 31855-58. Of course, as the Court has recognized, the
Agency had already determined that there was a significant risk to
employees in all industries where they are exposed to hazardous
chemicals without benefit of the information provided under the
requirements of the HCS.
Clearly, the HCS does not include any requirements that can be
considered to be ``technology-forcing.'' It simply requires the
development of information regarding hazardous chemicals, and the
transmittal of that information to exposed employees as well as to
downstream employers using the materials. For the construction
industry, where some training was required prior to the expansion of
the rule, the requirements simply involve the preparation of a written
program, maintenance of labels on containers within the workplace,
obtaining and maintaining material safety data sheets prepared by
chemical suppliers, and some incremental additional training of
workers. There simply are no issues of technological feasibility in
these types of requirements. 52 FR 31856-57.
OSHA completed a regulatory impact analysis prior to promulgation
of the 1987 final rule, and found that the standard is economically
feasible in all industries (Exs. 4-1 and 4-2; 52 FR 31867-76). The
analysis for this rulemaking is limited to the changes that were
proposed in the NPRM. OSHA concluded that the changes are not
significant or major, and therefore a regulatory impact analysis was
not required.
As the BCTD has pointed out (Ex. 89), employers' claims of economic
infeasibility are based on cost analyses that use inaccurate
assumptions about requirements of the rule. ``While showing that the
employer will incur some economic cost in complying with the standard,
industry representatives have fallen far short of demonstrating that
the cost they project will cause economic dislocation in the industry.
But even their projected costs are greatly inflated.'' The BCTD then
analyzed projections by the Coalition that a general contractor with
ten employees would have to spend $15,197.50 to comply the first year.
Without questioning the unit costs used, the BCTD deleted costs
assessed for activities that are not required by the rule. As a result,
using the Coalition's own figures, the costs would be reduced to
$5,053. OSHA believes that even that figure is an overestimation of the
actual costs, but in any event, the BCTD's analysis aptly illustrates
what OSHA itself has found to be true--that the construction industry's
statements regarding feasibility are based on inaccurate and inflated
assessments of activities that are not required by the rule.
In fact, statements from the industry representatives themselves
conflict on this issue. For example, although the AGC (Ex. 11-135, Ex.
84) and various members of the AGC have indicated that the rule is not
feasible, the AGC Dallas (Ex. 11-24) stated: ``All members have been
complying with the standard since 23 May, 1988 * * *.'' If the 600
members of the Dallas AGC were able to comply with the rule by May
1988, it cannot be considered to be infeasible. The Dallas AGC is
opposed to the HCS, and yet indicate that ``our members have always
trained and monitored the safe work practices of their workers which
they feel covers nearly 100% of the Hazard Communication training i.e.
safety goggles, protective gloves, respirators, etc. and believe the
regulation as it now stands is near impossible to comply with.'' It is
difficult to understand how the members could have accomplished
``nearly 100%'' of the HCS training prior to the implementation of the
rule, and yet have determined that it is ``near impossible to comply
with.''
Similarly, the Coalition has argued that the training requirements
of the rule are technologically infeasible (Ex. 11-142). And yet the
employer representatives testifying on behalf of the Coalition did not
indicate that this is the case. In response to a question from OSHA as
to whether training of workers before they actually go out on a site is
done, and is therefore feasible, the answer was yes (Tr. 5-48-9).
It is somewhat inexplicable to OSHA that the industry
representatives can claim that it is feasible to comply with the
existing training standards, and yet not with the HCS requirements.
Some of the discrepancy can be explained by the inaccurate
interpretations regarding training that persist in the industry despite
numerous clarifications and corrections by OSHA. On other issues,
however, the different positions on the rule are less clear.
For example, the Sec. 1926.21 rule does not address the so-called
``portability'' of training. There is no specific provision in that
rule for allowing employers to rely on training provided by some other
source, yet employers claim that compliance with that rule is feasible
and is being done. On the other hand, the HCS has been criticized for
not including such provisions. Ex. 84.
However, OSHA has already provided employers with guidance on this
issue in Appendix E to the rule (included in the NPRM at 53 FR 29855,
and published separately as a booklet, OSHA 3111). ``An employer can
provide employees information and training through whatever means found
appropriate and protective. Although there would always have to be some
training on-site (such as informing employees of the location and
availability of the written program and MSDSs), employee training may
be satisfied in part by general training about the requirements of the
HCS and about chemical hazards on the job which is provided by, for
example, trade associations, unions, colleges, and professional
schools. In addition, previous training, education and experience of a
worker may relieve the employer of some of the burdens of informing and
training that worker. Regardless of the method relied upon, however,
the employer is always ultimately responsible for ensuring that
employees are adequately trained. If the compliance officer finds that
the training is deficient, the employer will be cited for the
deficiency regardless of who actually provided the training on behalf
of the employer.''
In addition to this guidance in the appendix to the rule, OSHA has
also addressed this issue in its instructions to compliance officers
enforcing the rule. These instructions are publicly available, and are
included in the record at Ex. 4-170. ``Complete retraining of an
employee does not automatically have to be conducted when an employer
hires a new employee, if the employee has received prior training by a
past employer, an employee union, or any other entity.'' It continues:
``An employer, therefore, has a responsibility when hiring a new
employee who has been previously trained by someone other than the
current employer to evaluate the employee's level of knowledge against
the training, information requirements of the standard, and the
employer's own program.''
Both of these written interpretations were publicly available in
August 1988, and thus the construction industry representatives had
access to them prior to submitting comments or oral testimony. In any
event, they are also entirely consistent with all previous
interpretations of the rule on this issue provided by the Agency since
it was first promulgated in 1983. As discussed later in this preamble
in the discussion of the information and training provisions, OSHA is
clarifying the regulatory text to address this misinterpretation of the
rule's requirements. However, OSHA does not find that these claims of
infeasibility based on an apparent disregard for current
interpretations of the rule to be valid.
If employers in an area choose to establish a centralized training
program, perhaps in conjunction with local unions, the rule does not
prohibit such an arrangement. If the employers can assure themselves
that a worker has been properly trained, re-training is not required.
Another misinterpretation that persists in the industry comments
also involves training. Many of the claims of both economic and
technological infeasibility in the comments (see, e.g., Exs. 11-135,
11-142, and 84) are based on the misconception that the rule requires
training on each chemical, and subsequently each MSDS.
The 1987 HCS (as well as the 1983 rule), stated in paragraph
(h)(1): ``Employers shall provide employees with information and
training on hazardous chemicals in their work area at the time of their
initial assignment, and whenever a new hazard is introduced into their
work area.'' The training may be done in whatever way employers find
appropriate for their particular work operations, as long as all of the
elements addressed in the rule are included.
When OSHA published the 1987 rule, the re-training issue was
discussed in the preamble (52 FR 31866-67): ``One question that does
arise regarding training is whether it needs to be done specifically on
each chemical, or whether employers can train regarding categories of
hazards. Either method would be acceptable. See 48 FR 53312, 53338. If
employees are exposed to a small number of chemicals, the employer may
wish to discuss the particular hazards of each one. Where there are
large numbers of chemicals, the training regarding hazards could be
done on categories (e.g., flammable liquids; carcinogens), with
employees being referred to substance-specific information on the
labels and the MSDSs. Similarly, the re-training occurs when the hazard
changes, not just when a new chemical is introduced into the workplace.
If the new chemical has hazards which employees have been trained
about, no re-training occurs. If the chemical has a hazard they have
not been trained about, re-training would be limited to that hazard.''
This issue was also addressed in Appendix E to the proposed rule
(53 FR 29855): ``Information and training may be done either by
individual chemical, or by categories of hazards (such as flammability
or carcinogenicity). If there are only a few chemicals in the
workplace, then you may want to discuss each one individually. Where
there are large numbers of chemicals, or the chemicals change
frequently, you will probably want to train generally based on the
hazard categories (e.g., flammable liquids, corrosive materials,
carcinogens). Employees will have access to the substance-specific
information on the labels and MSDSs.''
The compliance directive included this topic as well (Ex. 4-170):
``Additional training is to be done whenever a new hazard is introduced
into the work area, not a new chemical. For example, if a new solvent
is brought into the workplace, and it has hazards similar to existing
chemicals for which training has already been conducted, then no new
training is required. Of course, the substance-specific data sheet must
be available, and the product must be properly labeled. If the newly
introduced solvent is a suspect carcinogen, and there has never been a
carcinogenic hazard in the workplace before, then new training for
carcinogen hazards must be conducted in the work areas where employees
will be exposed to it.''
Thus if an employer trains regarding all possible hazards (and
there are a total of 23 types of physical and health hazards covered
under the rule), there is no re-training required. If the employer
chooses to limit the initial training to some subset of the 23 hazards,
and a chemical is introduced into the workplace that has a hazard which
has not been addressed in the initial training, then re-training must
occur.
The construction industry's interpretation of this requirement is
not supported by available documentation. The plain reading of the text
indicates that re-training is to be done when the hazard changes, and
the hazards covered by the rule are defined, yet the industry
representatives interpret the requirement as being chemical-specific.
See, e.g., Exs. 11-6, 11-15, 11-24, 11-73, 11-84, 11-98, 11-142, and
11-152. (But see Ex. 4-106, Hazard Communication Guide for California
Construction by the Safety and Health Committee of AGC of California,
at p. 7. (``Training can be for each individual substance, chemical
families (solvents, metals), or categories of hazards.'') See also Ex.
71-16, a manual providing compliance guidance that was prepared by
AGC's counsel: ``Depending upon the types of hazardous chemicals used,
you may organize the subject matter by specific chemical, by categories
of hazard or by work area.'') The cost analyses they present to
demonstrate infeasibility are also based on this perception of the
rule's requirements (see, e.g., Ex. 11-142).
As will be discussed in the section of this preamble dealing with
information and training, OSHA is further clarifying the regulatory
text to deal with this issue. In terms of feasibility, however, the
Agency finds no evidence to indicate that the rule is infeasible with
respect to training, and particularly training of employees who will be
working on multi-employer worksites. OSHA has provided substantial
guidance to employers regarding these provisions, and such guidance was
available prior to, or at the time of, publication of the NPRM.
Infeasibility cannot be established through analyses based on
misinterpretations of the rule.
OSHA maintains that the rule is both economically and
technologically feasible. Industry claims to the contrary are based
primarily on inaccurate statements regarding the requirements of the
rule, a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-2273. Public record. Not legal advice.