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Watching the Clock

Safety professionals wonder whether OSHA will publish its GHS proposed rule in October as promised. They're also watching for the cranes and derricks negotiated rule and two important MSHA rules.

OSHA has two significant rules due for release this fall. MSHA has a proposed rule and two final rules pending. Will any of the five see the light of day before the presidency of George W. Bush ends in January 2009, probably closing the book on one of the longest-serving Labor secretaries in history, Elaine Chao?

Believe it or not, both OSHA rules are unopposed. Construction safety professionals and congressional oversight committees have clamored this summer for one of them, the cranes and derricks negotiated standard that was finished more than four years ago, because several crane accidents have made the news. Industrial hygienists and hazmat professionals are just as eager to see the Globally Harmonized System proposed rule because they believe standardized classification and labeling of chemicals will be a boon to workers worldwide.

"I'm very much looking forward to the issuance of [OSHA's] proposed rulemaking," said Mark S. Cohen, director of labeling for Irving, Texas-based NCH Corp. and 2008-09 president of the Society for Chemical Hazard Communication. "Back in 1984, when OSHA put forward their Hazard Communication standard, it changed hazard communication, and I think we can expect significant changes as we move toward globalization. It's been long awaited."

Aaron K. Trippler, government affairs director for the American Industrial Hygiene Association, warned in his July 9 "Happenings from the Hill" update that the GHS proposed rule probably won't be issued in October as promised, and the cranes and derricks final rule probably won't be issued this year. "Expect some last-minute regulations to make their way into the mainstream under the term 'emergency,' but don't look for the long-standing proposals AIHA and others have been following at OSHA," Trippler wrote. Here's a quick guide to the five rules, four other current hot topics on OSHA's plate, and a "secret regulation" filed July 7 with the Office of Information and Regulatory Affairs (OIRA) by Labor Secretary Elaine Chao's office.

OSHA
Cranes and Derricks. Negotiated rulemaking to update OSHA's 30-year-old standard covering lifting equipment at construction sites was announced in July 2002. The committee formed to write the new rule was established in June 2003 and completed its work in July 2004. The rule's required review by the White House Office of Management and Budget may be finished in September.

GHS. OSHA published its Advance Notice of Proposed Rulemaking to adopt GHS and conform the Hazard Communication standard to it on Sept. 12, 2006. The hoped-for U.S. adoption before the end of 2008 seems impossible to meet, but hazard communication professionals including SCHC's Cohen say the benefits of GHS will be realized even if the adoption takes more time.

Combustible Dust. H.R. 5522, the Combustible Dust Explosion and Fire Prevention Act of 2008, would require OSHA to issue a standard governing combustible dust accumulations and effective controls to prevent explosions such as the Feb. 7, 2008, blast that killed 14 workers at the Imperial Sugar plant in Port Wentworth, Ga. The bill passed the U.S. House of Representatives on April 30, 2008, by a 247-165 vote. It has been awaiting action by the U.S. Senate Health, Education, Labor and Pensions Committee since May 1. OSHA chief Edwin Foulke Jr. says no new standard is needed because the agency's emphasis programs, current standards, and enforcement are sufficient.

Diacetyl, Silica, Beryllium. OSHA rebuffed a petition to issue an emergency temporary standard to limit workers' exposures to this flavoring standard, saying that a review by its Directorate of Standards and Guidance did not support issuance of an ETS under Section 6(c) of the Occupational Safety and Health Act of 1970 to protect employees from a grave danger due to exposure. But the agency said it will develop an occupational health standard addressing the likely significant risk of material impairment of health due to exposure to diacetyl and food flavorings containing diacetyl, and OSHA held a stakeholder meeting Oct. 17, 2007, to discuss the issue.

The diacetyl standard was listed as a Prerule Stage item, along with standards to govern occupational exposures to crystalline silica and beryllium, in the most recent (May 5, 2008) semiannual regulatory agenda.

MSHA
Use or Impairment from Drugs and Alcohol on Mine Property. MSHA filed its ANPRM on Oct. 4, 2005, and then held seven public meetings about it. A proposed rule was filed with OIRA on June 3, 2008.

Mine Rescue Team Equipment.This final rule, published Sept. 6, 2007, would create a new Subpart B to 30 CFR part 49, with all standards applicable to rescue teams for underground coal mines contained in that subpart: training, experience, certification, equipment, proximity, mandatory participation in mine rescue contests, and more. This rule has been before OIRA since June 18, 2008.

Fire Extinguishers in Underground Control Mines, Published Dec. 20, 2007, this final rule would require an additional fire extinguisher in lieu of rock dust at all temporary electrical installations inside underground coal mines. OIRA received the rule July 1, 2008.

The 'Assessment of Occupational Health Risks' Rule
Labor unions smell a rat in a "Requirements for DOL Agencies' Assessment of Occupational Health Risks" proposed rule from Labor Secretary Elaine Chao's office that showed up July 7 as an item under review by the Office of Information and Regulatory Affairs. Checking www.reginfo.gov, is a way to keep tabs on the rule, which the Web site describes this way: "The Department of Labor is proposing requirements for its Agencies to follow when preparing risk assessments in conjunction with the development of health standards governing occupational exposure to toxic substances and hazardous chemicals. The proposed rule requires DOL agencies to follow a consistent, reliable, and transparent set of procedures when conducting risk assessments, outlines the components that should be included in a risk assessment, and provides for improved public access to rulemaking information."

The rule is classified as not major, with no regulatory flexibility analysis required. There is also no date shown for issuance of the notice of proposed rulemaking; the AFL-CIO and two congressional oversight committee chairmen, U.S. Sen. Ted Kennedy, D-Mass., and U.S. Rep. George Miller, characterize this mystery rule as a parting shot by Chao and the Bush administration that will block regulatory actions by OSHA and MSHA for years to come. Miller filed a bill, H.R. 6660, on July 30 to block it from taking effect.

The Washington Post obtained and posted the rule's text, which says DOL will accept public comments about the proposal "in order to gain valuable outside input and in the interests of full transparency and accountability to the public." But the text says the proposal is not an occupational safety and health standard for the public hearing purposes of the OSH Act or the Mine Act. This is part of the proposed regulatory text:

(b) Significant risk. The Department shall find, as a threshold matter, that there is a significant risk that can be eliminated or lessened by a change in practices before promulgating a health standard pursuant to the Occupational Safety and Health Act.

Would the rule lengthen an already interminable rulemaking process? Perhaps, because it would require both agencies to calculate hourly, daily, weekly, and yearly components of the "working life exposure," industry by industry, using "the best available evidence, and the latest available scientific data in the field."

This article originally appeared in the August 2008 issue of Occupational Health & Safety.

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