OSHA's HazCom Standard Does Not Require Chemical-Specific Training

by Arthur G. Sapper

You are the new safety manager of a chemical plant, which has about 700 hazardous chemicals. You examine the plant training records, and see that employees spent an inordinate amount of time being trained under OSHA's hazard communication standard. In fact, every employee is told the name of every hazardous chemical in his work area and given other chemical-specific information.

This puzzles you because you know that Paragraph (h)(1) of OSHA's Hazard Communication Standard, 29 C.F.R. § 1910.1200, specifically states: "Information and training may be designed to cover categories of hazards (e.g., flammability, carcinogenicity) or specific chemicals."

You also recall reading my article in the August 2000 issue of Occupational Hazards magazine - titled "Chemical-Specific or Hazard-Category Training?" - which argued that for this very reason, chemical-specific training is not required.

In your previous job, you used hazard-category training instead of chemical-specific training. You told employees that chemicals in their work area posed certain hazards, such as flammability or carcinogenicity, but you did not name every such chemical. You told them to get chemical-specific information from material safety data sheets and labels.

Curious, you call your predecessor and ask him why he provided chemical-specific training. He replies that OSHA's compliance directive, Instruction CPL 2-2.38D (1998), specifically states: "The employer must make employees specifically aware which hazard category (e.g., corrosive, irritant, etc.) the [chemical] falls within." The former safety manager adds that chemical-specific training was a waste of time because the employees were unable to retain the flood of information they got from him.

Is OSHA's compliance directive wrong? Can you save your new employer a lot of wasted time and money? Will you get a hefty performance bonus?

OSHA's Compliance Directive Is Wrong

The answer is that OSHA's compliance directive is indeed wrong. The Occupational Safety and Health Review Commission unanimously ruled on Sept. 29 that the HazCom standard does not require chemical-specific training.

The decision was issued in Secretary of Labor v. Cagle's Inc. (OSHRC Docket No. 98-485). There, OSHA's lawyers argued that Cagle's had violated the training standard because Cagle's employees were "not knowledgeable about the hazards of a particular workplace chemical": carbon dioxide. Echoing OSHA's compliance directive, they argued that Cagle's had failed to "specifically inform employees ... that carbon dioxide fell within a previously covered training category ... "

A coalition of seven trade associations then filed with the commission an amicus curiae brief, which I wrote. The coalition included the Chamber of Commerce of the United States, the National Association of Manufacturers, the Chemical Manufacturers Association (now the American Chemistry Council), Organization Resources Counselors Inc., the National Association of Chemical Distributors, the American Petroleum Institute and Association Connecting Electronics Industries. The detailed brief demonstrated that OSHA's argument flew in the face of the words and regulatory history of the standard.

The commission essentially agreed with the amici's brief, using the arguments and sources it provided. The commission rejected OSHA's interpretation as an attempt to amend the standard under the guise of interpretation, stating: "Requiring employers to inform employees about particular chemicals would require employers to cover all the chemicals in their workplaces during training. This would effectively rewrite the second sentence of § 1910.1200(h)(1), 'Information ... may be designed to cover categories of hazards ... or specific chemicals,' to read, 'Information must cover specific chemicals.'" [Emphasis by the commission.] The commission also pointed to express statements made by OSHA in the regulatory history of the HazCom standard that chemical-specific training was not required.

What of the Future?

It is unlikely that OSHA will appeal the commission's unanimous decision, and it is highly unlikely that OSHA will amend the standard to require chemical-specific training. Therefore, employers are free to decide whether to train by hazard category or by specific chemical. Employers who train on a category basis should, however, continue to be on the alert for OSHA compliance officers who mistakenly assert that chemical-specific training is required and inform them of the Cagle's decision. Employers should challenge any citation that demands chemical-specific training.

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.