ILMA Compoundings - June 2021 - 39

If finalized as
proposed, this
amendment will turn
hazard communication
in the U.S. into a
dysfunctional mess. "
the chemical being classified under
normal conditions of use and foreseeable
emergencies. The hazard classification
shall include any hazards associated
with a change in the chemical's physical
form or resulting from a reaction with
other chemicals under normal conditions
of use. Employers are not required to
classify chemicals unless they choose
not to rely on the classification performed
by the chemical manufacturer
or importer for the chemical to satisfy
this requirement paragraph (d)(1).
For Table D.1, OSHA proposes to
make the following italicized additions:
[Section 2] (c) Hazards identified
under normal conditions of use that
result from a chemical reaction (changing
the chemical structure of the original
substance or mixture...
[Section 10] (c) Possibility of hazardous
reactions, including those associated
with foreseeable emergencies...
When I read the proposed regulatory
text along with OSHA's explanation
in the preamble to the NPRM, it
appears to me to require upstream
chemical manufacturers and importers
and producers of mixtures, such
as ILMA members, to evaluate the
hazards of chemicals produced in
their immediate workplaces and then
make a hazard classification for every
downstream chemical reaction, both
intended reactions and those arising
from " foreseeable emergencies. " The
added regulatory text is problematic
for a number of reasons, including
the probability of inconsistent hazard
classifications when downstream users
produce reactions from products
supplied by different manufacturers.
How burdensome, feasible and costly
will these evaluations be, particularly
given the short compliance timeframe
proposed by OSHA? Does OSHA
expect the upstream manufacturer
to comply by conducting internet
searches for publicized uses of a chemical,
or does the agency expect these
manufacturers to contact each of its
downstream customers about possible
reactions? I can write another column
on the tort liability ramifications for
manufacturers and the likely effect on
their insurance premiums.
The question becomes why OSHA
wants to make this unprecedented
departure from the principles of
hazard communication that are recognized
and practiced around the world.
One answer may lie in the recent
memorandum of understanding
signed by OSHA and the Environmental
Protection Agency (EPA), with
OSHA trying to maintain its position
by requiring manufacturers to develop
the information on " conditions of use "
that the EPA needs to regulate " new "
chemicals under Section 5 of the Toxic
Substances Control Act. I know from
meetings over the years with OSHA
officials that the agency believes that
upstream chemical manufacturers,
and the makers of mixtures, are more
knowledgeable about hazards from
downstream reactions than the actual
users. Another reason may be OSHA's
lack of faith in its use of its " general
duty " clause for enforcement purposes.
If finalized as proposed, this amendment
will turn hazard communication
in the U.S. into a dysfunctional mess.
No OSHA guidance will be able to
restore OSHA's credibility on hazard
communication. Then, there is the
effect of the provision and its complexity
on the likely expansion of tort
liability for upstream manufacturers,
particularly when it is the downstream
users who have the workers compensation
protections. I have not even begun
to think about the nontariff barriers
the provision would create for those
ILMA members that sell their products
worldwide. The challenges and obligations
from the proposed amendment, if
finalized, will be enormous.
Hopefully, OSHA will digest ILMA
and other stakeholders' comments on
the issue of classifying chemicals for
the downstream hazards of chemical
reactions and will either abandon the
proposed change or will limit its scope
in some fashion. Stay tuned.
Leiter serves as general
counsel to ILMA, representing
the Association since 1981.
He may be reached at
202-466-6502 or jleiter@bmalaw.net.
39
ILMA Compoundings - June 2021

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