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Court challenges

April 14, 2012

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OSHA’s updated Hazard Communication Standard (1910.1200), while broadly supported, does have its share of detractors who could pursue court challenges to prevent part of the regulation from being implemented, according to some stakeholders.
 
“I don’t know how it could escape without challenge, as this one is a massive change,” said Tom Grumbles, product manager for The Woodlands, TX-based distributor Nexeo Solutions.
 
'I don’t know how it could escape without challenge, as this one is a massive change.'
The inclusion of combustible dust and the creation of the new “hazards not otherwise classified” category are two possible areas for court challenges, Grumbles said. Neither combustible dust nor the HNOC category are in the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals, which is incorporated into OSHA’s updated standard.
 
Another area that may result in a fight is the compliance dates (see table). Although the dates in the final standard are more generous than those originally proposed, some stakeholders suggest compliance with certain aspects could still be difficult. For example, both substances and mixtures must be in compliance with the new labeling requirements by June 1, 2015. This may be difficult for manufacturers or distributors of mixtures, according to Robert Kiefer, director of regulatory and technical affairs at the Washington-based American Chemistry Council.
 
“Substances need to be classified first before those classifications can be applied to mixtures,” he said.
 
However, OSHA’s compliance date for substances and mixtures coincides with the European Union’s implementation date for mixture classifications. Although international companies may benefit from this, the rule fails to take into consideration domestic-only suppliers or distributors, Kiefer said.
 
Manufacturers or distributors might question the updated rule’s inclusion of threshold limit value on labels, which is a voluntary limit from the American Conference of Governmental Industrial Hygienists, according to Aaron Trippler, director of government affairs for the Fairfax, VA-based American Industrial Hygiene Association. But the original hazcom standard requires TLVs to be on labels, so the updated rule maintaining that same requirement does not hurt label makers.
 
Denese Deeds disagreed that the rule will wind up before the courts. Deeds, senior consultant in chemical regulatory affairs for consulting firm Industrial Health and Safety Consultants Inc. in Shelton, CT, noted that stakeholders had numerous opportunities to get involved in the process and most were positive about the rulemaking; therefore, the end result was a consensus-driven standard.
 
“It would surprise me that there was someone who would challenge that this would be a legitimate regulation,” she said.

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