AWT Legislative Update
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OSHA Issues New Chemical
“PEL” Proposal
IMPACT: The accurate assessment of PEL (Permissible Exposure Levels) is extremely important in determining the safety concerns of the many chemicals in commerce. The existing data is often old and in need of updating. Many new compounds will also need to be evaluated. How this will be accomplished remains to be seen, but expect many changes in how health exposure data will be determined and evaluated in the future.

OSHA has published a proposed rule in an effort to review its overall approach to managing chemical exposures in the workplace. The review involves issues related to updating PEL as well as examining other strategies that could be implemented to address workplace conditions where workers are exposed to chemicals.
OSHA is requesting information on a number of technical issues related to aspects of its rulemaking process for chemical hazards in the workplace. In particular, the Agency will:
● Review OSHA’s current approach to chemical regulation in its historical context.
● Describe and explore other possible regulations that may be relevant to future strategies to reduce and control exposure to chemicals in the workplace.
● Inform the public and obtain public input on the best ways for the Agency to advance the development and implementation of approaches to reduce or eliminate harmful chemical exposures.
With few exceptions, OSHA’s PEL, which specify the amount of a particular chemical substance allowed in workplace air, have not been updated since they were established in 1971 under expedited procedures. The most significant effort to update the PEL occurred in 1989 when OSHA tried to revise many of its outdated PEL and create new PEL for other substances in a single rulemaking covering general industry. After public notice and comment, the Agency published a general industry rule that lowered PEL for 212 chemicals and added new PEL for 164 more.
OSHA is also soliciting information as to the best approaches for the Agency to help employers and employees devise and implement risk management strategies for reducing or eliminating chemical exposures in the 21st Century workplace environment. This is likely to involve a multi-faceted plan that may include changing or improving OSHA policies and procedures regarding the derivation and implementation of PEL, as well as pursuing new strategies to improve chemical management in the workplace.
To design and implement appropriate protective measures to control chemical exposures in the workplace, employers need reliable information about the identities and hazards associated with those chemicals. OSHA is considering ways in which recently developed data sources could be used by the Agency and employers to more effectively manage chemical hazards in the workplace.
Although toxicity testing for chemicals has increased greatly since the passage of the Toxic Substances Control Act (TSCA), toxicity data is only publicly available for a fraction of industrial chemicals. The International Trade Commission has recommended testing for hundreds of chemicals, and chemical producers have conducted more than 900 tests for these chemicals. However, potentially thousands of industrial chemicals have not been tested. With the rapidly expanding number of substances and mixtures, the need for toxicity information to inform chemical safety management and public health decisions in a timely manner has exceeded the capacity of government programs to provide those data.

To truly protect workers from chemical hazards, it is important that OSHA not only develop health standards for hazardous chemicals, but also understand alternatives to regulated chemicals and support a path forward that is less hazardous, technically feasible, and economically viable. Informed substitution provides a framework for meeting this goal.

 

Furthermore, substitution is the considered transition from a potentially hazardous chemical, material, product, or process to safer chemical or nonchemical alternatives. The goals of informed substitution are to minimize the likelihood of unintended consequences that can result from a precautionary switch away from a hazardous chemical without fully understanding the profile of potential alternatives, and to enable a course of action based on the best information that is available or can be estimated. Informed substitution approaches focus on identifying alternatives and evaluating their health, safety, and environmental hazards; potential tradeoffs; and technical and economic feasibility.
Read the proposed rule in its entirety.

OSHA Issues Hazmat Permit Notice

IMPACT: For information only.

The Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a Notice of Proposed Rulemaking to address certain matters identified in the Hazardous Materials Transportation Safety Act of 2012 related to the Office of Hazardous Materials Safety Approvals and Permits Division. Specifically, PHMSA is proposing to revise the regulations to include the standard operating procedures (SOPs) and criteria used to evaluate applications for special permits and approvals. These proposed amendments do not change previously established special permit and approval policies, but rather, the rulemaking will provide clarity regarding what conditions need to be satisfied to promote completeness of the applications submitted. An application that contains the required information reduces processing delays that result from rejection and further facilitates the transportation of hazardous materials in commerce while maintaining an appropriate level of safety.
In the mid 2000s, PHMSA conducted an internal agency review of its special permit and approval program practices. This review indicated that some active special permit holders that were no longer in business had used their special permit in locations not designated in the application, changed company names and locations without informing the agency, or otherwise used their special permit in ways not authorized. The Department determined that PHMSA’s current practices for assessing the fitness of its special permit holders needed improvement. PHMSA receives approximately 3,000 special permit applications and 20,000 approval applications annually.
To avoid processing delays for the special permit and approvals programs, PHMSA has revised its SOPs to change how it manages incomplete applications, from the practice of retaining them while requesting and waiting for missing information” to “rejecting incomplete applications.” Applicants who would like to have their applications reconsidered must resubmit the entire application along with the requested missing information. PHMSA informs applicants in writing of the reason for the rejection and indicates what information is missing from their applications. In the past, some individuals with rejected applications communicated to PHMSA that the materials they received did not explain how or exactly what was to be resubmitted, which led to more incomplete submissions and processing delays.

PHMSA is also looking at ways to improve how applicants’ submissions are processed. Therefore, the Administration is seeking comment on ways to improve the processing of its special permit and approval application process, and to improve the clarity of its communications with the applicants to ensure they know how, where, and what type of information to submit to improve PHMSA applications processing.
The hazardous materials community is a leader in developing new materials, technologies, and innovative ways of moving materials. Because not every transportation situation can be anticipated and built into the regulations, special permits and approvals enable the hazardous materials industry to quickly, effectively, and safely integrate new products, technologies, and procedures into production and transportation. Before they are authorized by the Agency, the applicant must prove that the relief requested is of a safety level that is at least equivalent to that provided in the regulations or demonstrates an alternative consistent with the public interest that will adequately protect against the risks to life and property inherent in the transportation of hazardous materials.
Special permits and approvals also reduce the volume and complexity of the HAZMAT regulations by addressing unique or infrequent transportation situations that would be difficult to accommodate in regulations intended for use by a wide range of shippers and carriers. PHMSA’s Approvals and Permits Division manages special permit and approval application processing, application completeness, and coordination of their technical and modal agency reviews. This division also processes modifications to, suspensions of, and terminations of special permits and approvals.
During the completeness review, PHMSA determines whether the application contains all of the information required and whether the information is sufficient to determine the safety level of the relief the applicant is requesting. For a special permit, the purpose of the completeness phase is to determine if the applicant submitted the required information. PHMSA then must analyze this information to assess whether the action and/or process the applicant requests is sufficient to provide a level of safety equal to that of the HAZMAT regulations or demonstrates an alternative consistent with the public interest.
During the evaluation phase, if the tasks or procedures requested in each special permit or approval application are determined to provide an equivalent level of safety to that required in the HMR, or if a required safety level does not exist, that they provide a level of safety that demonstrates an alternative consistent with the public interest that will adequately provide protection. PHMSA also evaluates the applicant to determine its fitness to operate under a special permit or approval.
PHMSA also conducts technical analyses of the risks that may be associated with transporting a hazardous material using the proposed packaging or operation in the specific mode of transportation that the applicant is requesting. Some of the research areas considered include package integrity; risk assessment, management, and mitigation; emerging technologies; and human factors that may affect safety.
PHMSA then will issue a final disposition to the applicant in writing. “Reject” is used if the application is incomplete or insufficient to determine an equal level of safety or demonstrate an alternative consistent with the public interest that will adequately provide protection. “Deny” will be issued if the application does not provide an equal level of safety or the applicant is not fit to operate under a special permit. “Issue” will be used if the application is approved and the special permit is issued.
Read the proposed rule in its entirety.