The Article Critique assignment for this course should include the following components:
 a brief introduction of the article,
 a statement on the legal aspects of the OS&H topic,
 an analysis of the key points in the article, and
 a summary of the article’s conclusions and your own opinions.
The completed assignment should be a minimum of 2 pages to a maximum of 4 pages, and should be double-spaced. The critique should also be written following APA style guidelines. Therefore, the APA rules for formatting, quoting,citing, and listing of sources are to be followed.

Here is the article
LEGAL AFFAIRS

Chemical-Specific or Hazard-Category Training?

In the face of an industry challenge, OSHA declines to defend the legality of its new hazcom training compliance directive.

A new chemical arrives at your plant. You are unfamiliar with it, so you examine its material safety data sheet. You find that its hazards are shared with other chemicals you already use. It is flammable, like solvents you use, and it can cause lung damage, like certain adhesives you use. The measures that your employees can take to protect themselves against the hazards of this chemical are the same as those for the other chemicals. You have a good hazard communication training program. You have already trained your employees on the hazards of flammability and lung damage, and the measures needed to spot and avoid them. Must you train your employees on this new substance? Must you inform them of the new chemical’s name and tell them of hazards it poses?

Because your plant has thousands of chemicals, you realize that training your employees on each one would be an impossible burden to shoulder. Even if you had the time to train your employees on each chemical, they could not retain that much information anyway.

Many employers do not realize that, according to the clear words and regulatory history of the training provision of the hazard communication standard, the answers to the above questions are “no.” Chemical-specific training is not required. The problem is that you might receive a citation from OSHA anyway.

Paragraph (h)(1) of the Hazcom Standard

Employers in this situation have received citations alleging violations of paragraph (h)(3) of OSHA’s Hazard Communication Standard, 29 CFR 1910.1200. It requires that training include “[t]he physical and health hazards of the chemicals in the work area,” the “measures employees can take to protect themselves from these hazards,” and “[m]ethods and observations that may be used to detect the presence or release of a hazardous chemical.” Many OSHA compliance officers have read these provisions as requiring chemical-specific training. However, paragraph (h)(1) states, in part: “Information and training may be designed to cover categories of hazards (e.g., flammability, carcinogenicity) or specific chemicals. Chemical-specific information must always be available through labels and material safety data sheets.” These two sentences were added in 1994 for the specific purpose of making clear that chemical-specific training is not required.

Even before they were added, OSHA had made the same point in the standard’s Appendix E and the 1983 preamble to the original version of the training provision. Appendix E states:

“Information and training may be done either by individual chemical, or by categories of hazards (such as flammability or carcinogenicity). If there are only a few chemicals in the workplace, then you may want to discuss each one individually. Where there are large numbers of chemicals, or the chemicals change frequently, you will probably want to train generally based on the hazard categories (e.g., flammable liquids, corrosive materials, carcinogens).”

OSHA also made the same point in preambles published in 1987, 1988 and 1990. (See 52 Federal Register (FR) 31852, 31866, 1987; 53 FR 29822, 29845 col. 1, 1988; 55 FR 20580, 20584 col. 1, 1990.) In the 1990 preamble, OSHA even stated that “training on each hazardous chemical will generally not be an effective training approach.” An OSHA compliance directive stated that, “[f]or example, if a new solvent is brought into the workplace and it has hazards similar to existing chemicals for which training has already been conducted, then no new training is required.” (OSHA Instruction CPL 2-2.38C, “Inspection Procedures for the Hazard Communication Standard, 29 CFR 1910.1200 …” at pp. A34, A-35, Oct. 22, 1990.)

The problem is that many OSHA compliance officers had not read or understood these materials, so they thought that paragraph (h)(3) required training on each chemical. Many citations were issued as a result, which created employer resentment and fueled arguments by employer groups that the standard was infeasible. In reaction to those arguments, OSHA amended the standard in 1994 to make clear that chemical-specific training was not required and explained its decision to do so at unusual length. (See 59 FR 6126, 6141 col. 2 through 6142 col. 1, 6166 cols. 1-2, 1994.)

No End to Confusion

One would think that the 1994 amendment would have ended the confusion among OSHA field enforcement personnel. It did not. Instead, the confusion has worsened. The reasons are twofold.

First, the Occupational Safety and Health Review Commission (OSHRC) issued decisions in 1993 and 1995 that, OSHA believes, interpreted the standard to require chemical-specific training. In 1993, the review commission issued Safeway Store No. 914, 16 BNA OSHC 1504, 1513-14 (OSHRC 1993), that, in an unclear opinion, appeared to suggest that chemical-specific training was required. The case was decided before the 1994 amendment was published and did not cite or discuss Appendix E or the regulatory history passages cited above. In Well Solutions Inc., 17 BNA OSHC 1212, 1215 (OSHRC 1995), the review commission cited Safeway Store with approval, again seemed to require chemical-specific training, and did not refer to the 1994 amendment or the regulatory history of the training provision.

Second, these commission decisions, in turn, apparently encouraged OSHA enforcement officials to require chemical-specific training as a matter of enforcement policy. In 1998, OSHA issued a new version of its compliance directive on the hazcom standard, OSHA Instruction CPL 2-2.38D, “Inspection Procedures for the Hazard Communication Standard, 29 CFR 1910.1200 …” (March 20, 1998). Although previous versions of the directive stated clearly that chemical-specific training was not required (see the quote above), the new version states that “the employer must make employees specifically aware which hazard category (i.e., corrosive, irritant, etc.) the [chemical] falls within.” Training materials recently given to compliance officers on the new directive likewise state that, in training, “[h]azard categories must be linked with chemicals” and that employees must be made “specifically aware of the hazard categories a product falls within.”

All this has made for considerable anger in the employer community, for it appeared that OSHA’s enforcement staff had disregarded repeated statements and assurances to the public by OSHA’s rulemaking staff. For one thing, OSHA had not merely amended its standard in 1994 to make clear that chemical-specific training was not required. OSHA rulemakers had, on that very ground, rejected industry challenges to the feasibility of the standard, stating, “Infeasibility cannot be established through analyses based on misinterpretations of the rule.” OSHA had further assured the Office of Management and Budget (OMB), which reviews and approves OSHA standards under the Paperwork Reduction Act, that “the standard does not require specific hazard training on each chemical.” Ironically, OSHA’s submission to OMB had noted the observation of the National Advisory Committee on Occupational Safety and Health that it was a “common misperception” that training is required for each hazardous chemical.

The Cagle Case

Last year, the review commission granted review of what appeared to be an unexceptional case — Cagle’s Inc., OSHRC Docket No. 98-485. In brief, an OSHA compliance officer had interviewed several employees about their hazard communication training, but she focused specifically on one chemical, carbon dioxide. She asked about their training on only carbon dioxide and ignored any hazard-category training the employer gave; for example, she declined to view a hazard communication training videotape that the employees had been shown. OSHA’s lawyers argued that the training violated the standard because Cagle’s employees were “not knowledgeable about the hazards of a particular workplace chemical,” carbon dioxide. Cagle’s had failed, they argued, to “specifically inform employees … that carbon dioxide fell within a previously covered training category.”

A coalition of seven trade associations filed an amicus curiae brief with the review commission. They were the U.S. Chamber of Commerce, the National Association of Manufacturers, the Chemical Manufacturers Association, Organization Resources Counselors Inc., the National Association of Chemical Distributors, the American Petroleum Institute and the Association of Connecting Electronics Industries. Their brief argued that OSHA’s argument flew in the face of the words and regulatory history of the hazard communication standard. The amici’s brief presented in detail the regulatory history and documented OSHA’s enforcement shift, even reproducing the training slides mentioned above.

The amici also pointed out the enormous practical problems that chemicalspecific training would pose. “Large chemical plants, for example, often have many thousands of chemicals and often use or create new ones. Factories in the high-technology sector of the economy experiment with, and use for short times, a great many new chemicals…. The burden of tracking these chemicals, and then giving each employee chemical-specific training, would be so enormous as to make Paragraph (h) infeasible.”

After the employer and the amici filed their briefs, OSHA was entitled to file a reply brief. Surprisingly, the agency declined to do so. This move would be unusual in any kind of case. Here, it was doubly so, for the brief of the amici had taken direct aim at the legality of OSHA’s new compliance directive and had exposed its inconsistency with the language and legislative history of the standard.

The Cagle’s case is pending, and it is not clear when a decision will be announced. In the meantime, employers should not accept citations from OSHA that fault employers for not giving chemical-specific training.

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By Arthur G. Sapper, Contributing Editor

Contributing Editor Arthur G. Sapper is a partner in the OSHA Practice Group of McDermott, Will & Emery. He authored the brief of the amici curiae in the Cagle’s case.

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