Presentation to RCMA Summer Meeting. Update on Some Federal and State Regulatory Developments of Interest. Art Sampson July 13, 2015

Transcription

1 Presentation to RCMA Summer Meeting Update on Some Federal and State Regulatory Developments of Interest Art Sampson July 13, 2015

2 Topics Asphalt Update Proposed Re-Write of Prop 65 Warning Regulations OSHA Developments 2

3 Asphalt Update In 2013, IARC published its revised Bitumen Monograph, which contains this finding: Occupational exposures to oxidized bitumens and their emissions during roofing are probably carcinogenic to humans (Group 2A) When I last presented to this group in October 2013, OSHA HazCom compliance (product labels, SDSs, training for plant workers) was the area of immediate impact. We also discussed the prospects for a series of additional evaluations in the wake of the IARC Monograph, including: National Toxicology Program (NTP) American Conf of Govt Industrial Hygienists (ACGIH ) CA Proposition 65 Cal/OSHA Texas Commission on Environmental Quality (TCEQ) A number of steps are being taken to anticipate these proceedings. 3

4 Asphalt Update First, ARMA and NRCA have worked together over the past several years to develop improved temperature guidelines for hot asphalt roofing jobs and to build a broad industry consensus in support. These efforts culminated in the adoption of revisions to ASTM D312 in February. The new standard: Sets a minimum flashpoint of 575 F and a maximum kettle temperature of 550 F. This is expected to significantly lower kettle temperatures. Establishes maximum EVTs for Type III and IV asphalts, which account for the great majority of BUR asphalts in use today. This provision is expected to significantly reduce application temperatures for D312 asphalts. Clarifies and reinforces requirement for lot-specific EVTs on cartons and bills of lading, and adds the new 550 F maximum kettle temperature. This provision improves the reliability of package labeling. Discussions are underway on how to include low-flashpoint (< 575 F) asphalts into the standard. 4

5 Asphalt Update Second, the 2011 edition of the Roofing Perspectives paper is being updated. The paper was originally written for use in the IARC Monograph review and will be modified in several ways to anticipate the upcoming evaluations: Extensive exposure data from roofing plants will be added We plan to incorporate even greater emphasis on temperature as a critical factor in worker fume exposures General discussions of health hazards and risks will be included to provide context for the exposure data Scope will be limited to North America, as will sponsorship. We expect to circulate a draft this Fall. ARMA/NRCA hope RCMA will join in the update as it did in the two earlier editions. 5

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7 Prop 65 The proposed regulations published by CA s Office of Environmental Health Hazard Assessment (OEHHA) in January have been described using terms like seismic, farreaching, and major Key points for RCMA members: New safe harbor warning language More options for delivering warnings The Dirty Dozen Increased effort to make manufacturers responsible for warnings (i.e., reduce burdens on retailers) Recognition of preemptive effect of the OSHA HazCom Standard for occupational warnings The new OEHHA website for Prop 65 7

8 Prop 65 Proposed New Safe Harbor Warning Current Warning WARNING: This product contains a chemical [or chemicals] known to the State of California to cause cancer and birth defects or other reproductive harm. Proposed New Warning WARNING: This product can expose you to a chemical [or chemicals] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to 8

9 Prop 65 Proposed New Safe Harbor Warning : Some Key Points The proposal contains specific requirements for color scheme and font size for on-product warnings that differ from other required warnings such as HazCom. The change from contains to can expose you to is intended to reduce unnecessary warnings for non-existent or insignificant exposures. OEHHA says: Warnings are not required where a product simply contains a listed chemical A warning is required if exposure is foreseeable The symbol is modeled on the widely used ANSI warning symbol Manufacturers will have two years after the final standard is issued to come into full compliance (time to sell existing inventory with the old warning). Final action expected in January

10 On-product labels Shelf tags or signs Prop 65 New Methods for Delivering Warnings NOTE: If any label, labeling or sign about a product is provided in a language or languages other than or in addition to English, then the Prop 65 warning must also be provided in the same language[s] A product-specific warning provided via any electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase of the product, without requiring the purchaser to seek out the warning For internet purchases, a clearly marked hyperlink on the product display page, or otherwise prominently displayed to the purchaser before the purchase is completed. For catalog purchases, the warning must be provided in the catalog in a manner that clearly associates it with the item being purchased 10

11 Prop 65 The Dirty Dozen Acrylamide Arsenic Benzene Cadmium Carbon Monoxide Chlorinated Tris Formaldehyde Hexavalent Chromium Lead Mercury Methylene Chloride Phthalate[s] 11

12 Prop 65 The Dirty Dozen: Some Key Points The chemicals listed must be included in the text of the warning, to the extent that an exposure to that chemical is reasonably calculated to occur at a level that requires a warning. EXCEPTION: For product exposure warnings, the chemicals need not be included in the warnings of on-product labels The list is likely to grow over time. The criteria OEHHA uses include: Prevalence Potential for significant exposure Enforcement activity Familiarity to the public Availability of additional authoritative information (for the website) 12

13 Prop 65 Increased Emphasis on Manufacturers The proposed regulations contain a series of provisions intended to transfer warning obligations (and liabilities) from retailers to manufacturers (includes distributors, packagers, importers) The stated objective is to relieve burdens on retailers, including the need to defend against Prop 65 s bounty hunter provisions permitting (and remunerating) private enforcement of Prop 65 warning requirements The proposal, OEHHA says, is based on the premise that manufacturers have the primary responsibility for warnings The upshot may be increased bounty hunter litigation against manufacturers. OEHHA says: For purposes of litigation to enforce the requirements of Proposition 65, when a product is sold without a warning, the enforcing party will generally need to proceed against the manufacturer, producer, packager, importer and/or distributor. 13

14 Prop 65 Occupational Warnings The proposal specifically states that a warning to exposed employees that meets the requirements of the Federal (OSHA) HazCom Standard, and the CA HazCom Standard, constitutes compliance with Prop 65. However, the proposal also changes the terminology of the regulations to replace the former term consumer product exposure to product exposure, which is defined to mean exposure to a person resulting from any reasonably foreseeable use of a product. The language can be read to apply to exposures to downstream employees. Thus, the main beneficiaries of the HazCom provision in the proposal may be manufacturers with plants in CA. 14

15 Prop 65 The Proposed Prop 65 Website As noted, all the new safe harbor warning language that has been proposed includes a web link to a new Prop 65 website that OEHHA would develop and maintain. The purpose is to provide a one-stop shop for supplemental information including Health effects information Exposure levels and routes of exposure Preventative measures The proposal gives OEHHA the power to make onerous information demands on industries, but the agency claims that it primarily intends to collect existing, publicly available information for the website on its own. It also anticipates that some businesses and trade associations will proactively provide information for the OEHHA website so that there will seldom be a need to formally request such information. 15

16 OSHA Update HazCom In 2012, OSHA substantially revised the standard intended to align it with the UN s Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The 2012 standard s provisions for SDSs and product labels became effective June 1, 2015 for manufacturers. OSHA has issued two enforcement guidelines relating to this deadline. The first grants flexibility in cases where a manufacturer misses the deadline because of delays in receipt of SDSs from raw material suppliers, provided the manufacturer has exercised reasonable diligence and good faith The guideline includes specific factors to be considered in determining reasonable diligence and good faith, such documentation of meaningful efforts to obtain hazard information from upstream suppliers. 16

17 OSHA Update HazCom A second guideline provides that manufacturers that have existing stock packaged (e.g., boxed, palletized, shrinkwrapped, etc.) for shipment prior to June 1, 2015, that are HCS 1994-compliant labeled, may continue to ship those containers downstream. Both of these guidelines are described as interim and OSHA has indicated that they will be included in its new HazCom compliance directive, which was slated for release in early June but is not yet out. 17

18 OSHA Update Silica OSHA s September 2013 proposal would lower the silica PEL by about one-half, to 50 ug/m 3, require primary reliance on engineering controls, and impose ancillary requirements typically seen in comprehensive OSHA health standards. As expected, the proposal has been highly controversial and generated a huge factual record. Record closed August 2014 OSHA has committed to finalizing the standard before the end of the current administration, but its ability to follow through is unclear because of the complexity of the rulemaking and record, continuing submissions by major industry and labor groups, and potential legislative maneuvering. OSHA s public statements show increasing confidence that the final standard will be issued before end Whenever OSHA takes final action, litigation is certain to follow. 18

19 OSHA Update Recordkeeping and Reporting Rules Significant changes are contained in rules that have been issued recently or are nearing final action. First, in September 2014, OSHA amended its regulations on reporting work-related fatalities and hospitalizations. The previous regulation required employers to report workrelated fatalities and in-patient hospitalizations of 3 or more employees within 8 hours of the event. The revised rule retains the requirement to report fatalities within 8 hours of the event, but requires reporting of all hospitalizations, as well as amputations and losses of an eye, within 24 hours. Reporting is no longer limited to incidents involving 3 workers; death or serious injury to 1 worker triggers reporting. These changes became effective on January 1,

20 OSHA Update Recordkeeping and Reporting Rules Second, a proposal nearing final action would revise Part 1904 of OSHA s regulations to dramatically increase reporting of work-related injury and illness information from OSHA Form 301 (Injury & Illness Incident Report), Form 300 (Injury & Illness Log), and Form 300A (Annual Summary) Currently, the forms must be provided to OSHA, and to employees or their representatives, only in response to specific requests (e.g., during OSHA inspections) The annual summary (Form 300A) must be posted in the workplace for 3 months but not reported OSHA collects some Form 300A information from facilities with 20 employees in designated industries (including manufacturing) once every 2-3 years. This is the only routine reporting requirement for the Part 1904 injury & illness forms. 20

21 OSHA Update Recordkeeping and Reporting Rules OSHA s November 2013 proposed rule would establish a broad program of electronic reporting as follows: Establishments with 250 employees must electronically submit all Part 1904 information to OSHA quarterly With exceptions not relevant here, establishments with 20 employees must electronically submit the Form 300A summary to OSHA annually Any employer must electronically submit Part 1904 data as requested by OSHA in a notification delivered by mail and published in the Federal Register & on OSHA s web site OSHA indicates it plans to build a secure Web site for the electronic data submissions. 21

22 OSHA Update Recordkeeping and Reporting Rules The preamble to the proposal indicates that, except as prohibited by FOIA and the Privacy Act, the data collected may be made public as follows: All Form 300A (annual summary) data All injury/illness Logs (Form 300) except for employee names Selected fields on the Incident Reports (Form 301) The proposal has resulted in strenuous opposition from industry groups, which claim that it would encourage underreporting, result in breaches of employee privacy and CBI, lead to misuse by plaintiffs attorneys and others OSHA is currently reviewing the rulemaking record and its latest regulatory calendar projects final action Sept

23 Questions? 23