OSHA Plan To Delete TLVs In GHS Draws Mixed Reaction

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Date: January 26, 2010

OSHA’s plan to no longer require manufacturers and employers to list exposure data other than OSHA permissible exposure limits (PELs) on safety data sheets drew mixed reactions from stakeholders commenting on the agency’s proposal to adopt a globally harmonized chemical labeling system. NIOSH, unions, industrial hygienists and some in industry favor the inclusion of threshold limit values (TLVs) -- developed by the American Conference of Governmental Industrial Hygienists (ACGIH) -- and other additional data, while others in industry praise OSHA for scrapping such data, with one group questioning the legality of requiring the inclusion of TLVs.

Those in favor of including TLVs on safety data sheets (SDSs) -- as is currently required in the Hazard Communication Standard (HCS) -- say the information helps workers and employers assess hazards beyond the often-outdated PELs. Adding back the additional exposure data would also help users deal with chemicals where there is no PEL and would prevent some companies from being at a competitive disadvantage for listing TLVs and other data, sources say.

The agency states in its proposal to update the HCS that it will be mandatory to include PELs on the SDS but other exposure limits need only be included if they are used or recommended by the manufacturer, importer or employer that prepares the SDS. OSHA says its plan to only mandate PELs on the SDS helps to limit differences between the U.S. and other countries participating in the Globally Harmonized System of Classification and Labeling of Chemicals (GHS).

Unions argue in their comments that the TLVs should be added back to the SDS because PELs are outdated and reliance on only them would have a detrimental impact on worker safety. The American Federation of State, County and Municipal Employees (AFSCME), the United Steelworkers and AFL-CIO urge the agency in their comments to continue requiring TLVs on the SDS. The AFL-CIO states in written comments that it would be a “significant step backwards” to make TLVs voluntary. AFSCME states that adding them back poses no regulatory burden because they are already routinely required in the HCS. Additionally, the union states that TLVs are not only recognized in the United States, but worldwide as well.

NIOSH also urges OSHA to consider adding other exposure limits on the SDS to “ensure that the most comprehensive information is available to the user.” In addition to PELs, NIOSH recommends that TLVs, NIOSH’s Recommended Exposure Limits (RELs), AIHA’s Workplace Environmental Exposure Limits (WEELs), and German Maximum Allowable Concentrations (MAKs) be added to SDSs. Additionally, NIOSH notes in its comments that additional exposure data may be helpful in dealing with chemicals where there is no PEL or REL available.

The American Industrial Hygiene Association (AIHA), which also supports inclusion of TLVs, issued an alert last fall to inform members about the issue and encourage them to comment on OSHA’s proposal. The group suggests in its comments that the agency include values such as TLVs and WEELs as a non-mandatory appendix to the HCS.

AIHA states that solely referencing PELs on the SDS “raises many concerns,” as they have not been updated for years -- and some for four decades -- and are not reflective of the latest information on acceptable exposure levels. The group adds that TLVs and WEELs are “the most robust exposure guidance for chemicals available today,” noting that they do not take technological or economic feasibility into account, while the OSHA PELs do take that into consideration.

A former OSHA official also recommends the agency consider adding back the TLVs. Adam Finkel, the former director of OSHA’s health standards program, states in his comments that it would be “ill-advised” for the agency to remove the TLVs. He says both TLVs and the PELs should be included on the SDS, and that OSHA should require TLVs over the PELs, if it had to choose one of the two.

He adds that it would be “illogical” and “disingenuous” to place more credibility on TLVs than PELs because many PELS are themselves TLVs, but based on outdated information and done when the process was less rigorous. He states that the purpose of the regulation is to provide workplaces with information about dangers and “not about factors that are only partially relevant, or irrelevant, to risk.”

Finkel told Inside OSHA that he thinks OSHA didn’t provide a compelling reason not to include the TLVs in its proposal. The agency should specifically state whether it has a legal concern with requiring TLVs or not, rather than justifying the move by stating that it would improve harmonization, he said. He argues in his comments that the change would make the U.S. system less compatible with other countries because the World Health Organization uses the TLVs.

Nevertheless, he notes that OSHA and NIOSH need to take a lead on the issue “and develop hundreds of chemical-specific values that correspond to a common level of risk,” he states. “Once armed with a growing and evergreen set of risk-based levels, OSHA could then move to make TLV information optional.”

Some in industry also expressed an openness to seeing TLVs included again. Dow Chemical Company states that it has no objection to the inclusion of TLVs. It notes that there is some concern that if TLVs are no longer required on the SDS, some manufacturers may omit critical information about exposure limits and the varying data could lead to confusion by users about the hazardousness of a material.

Additionally, the Halogenated Solvents Industry Alliance states in its comments that the group’s member companies often use TLV recommendations because there are no PELs for some chemicals they use. HSIA raises concerns that the proposed change by OSHA would put producers “who continue to follow the TLV recommendations in their SDSs at a competitive disadvantage.”

But the Center for Regulatory Effectiveness (CRE) and some key industry groups back OSHA’s plan, including the National Association of Home Builders, the American Foundry Society and the Independent Lubricants Manufacturers Association (ILMA). ILMA states that it makes sense to remove TLVs because the exposure limits are developed in private and the public is unable to question the values before they are finalized. “ILMA believes that because the TLV development process is closed, TLVs have compromised scientific value and limited utility in addressing occupational health and safety matters,” it states.

Perhaps putting OSHA on notice that a decision to include TLVs could land the agency in court, CRE states in comments that it supports OSHA’s recent proposal and questions the legality of the existing method in the HCS which requires TLVs to be listed. William Kelly of CRE states in comments on the rule that ACGIH’s TLVs and International Agency for Research on Cancer (IARC) evaluations cannot be incorporated by reference in the hazard communication regulation because such incorporation does not meet the requirements of the Data Quality Act. He says that agency-required information dissemination, or agency reliance on outside information, is considered the same as information distributed by the agency, according to the Act’s guidelines.

Kelly says the proposed change in the GHS proposal is necessary, as there is no agency pre-dissemination review or agency-initiated independent peer review of the TLVs or IARC evaluations.

Kelly told Inside OSHA that CRE wanted to make it clear in its comments that inclusion of additional data on the SDS cannot legally be required, even though some groups may think it is a good idea. “That old approach is completely incompatible with the new law,” he said.

He noted that CRE filed a petition a few years ago requesting a change to the hazard communication rule because of similar DQA concerns with IARC proceedings at the time. However, a pending IARC evaluation was subsequently inconclusive and OSHA assured CRE that it was moving forward on adopting GHS and would address the issue during that rulemaking process. As a result, the group withdrew its petition and waited for the agency to act on GHS. -- Sara Ditta