The act creates two general duties for employers to keep the workplace free from hazards. First, employers must provide employees with a place of employment "free from recognized hazards that are causing or likely to cause death or serious physical harm ..." (OSH Act §5[a], 29 USC §654[a]). Secondly, and more directly related to controlling hazardous substances in the environment, employers must comply with the occupational safety and health standards promulgated under the act (OSH Act §5[a], 29 USC §654[a]). In addition, employees must comply with the act's standards as well as all other rules and regulations related to the act (OSH Act §5[b], 29 USC §654[b]).
Occupational Health and Safety Administration Standards
The Department of Labor's Occupational Health and Safety Administration (OSHA) is required to promulgate health and safety standards to protect workers at their places of employment (OSH Act §6, 29 USC §655). The original standards, sometimes referred to as source standards, have been in effect since April 28, 1971. These standards originated from private groups such as the National Fire Protection Association as well as from previously established federal safety standards. While some of the orig inal source standards were revoked because they were unrelated to health or safety,6 most of the standards are in effect today. All other OSHA standards are adopted in accordance with the procedures in section 6(b) of the act (OSH Act §6[b], 29 USC §655[b]).7
Source standards generally apply to air contaminants in the workplace for which the act creates threshold limits which cannot be exceeded. Approximately 380 substances are currently subject to these limits.8 The OSHA has adopted approximately twenty additional standards pursuant to section 6(b). These standards are largely based upon acute health effects, chronic health effects, and car-cinogenicity.
The scope of OSHA's standards is divided into two principal areas, General Industry Standards (29 CFR pt. 1910) and Construction Industry Standards (29 CFR pt. 1926). Nevertheless, certain industries may be exempt from a standard when another federal agency "exercise[s] statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health (OSH Act §4[b], 29 USC §653[b]).
The act also provides a temporary variance and a permanent variance which facilities can obtain to avoid the OSHA standards. A temporary variance can be granted for up to two years from the effective date of a standard provided that either the means for meeting the standard are not currently available or the controls cannot be installed by the standard's effective date (OSH Act §6[b], 29 USC §655[b]).9 A permanent variance can be granted when the employer can demonstrate the workplace is "as safe and healthful as those which would prevail if he complied with the standard (OSH Act §6[d], 29 USC §655[d]).10
In November of 1983, the OSHA published a hazard communication standard (HCS) which requires employers to inform employees of the hazards associated with the chemicals they are exposed to in the workplace (29 CFR §1910.1200). The HCS also requires employers to inform employees of how to protect themselves from health risks associated from such exposure (29 CFR §1910.1200). Finally, the HCS creates labeling standards for containers of hazardous substances in the workplace (29 CFR §1910.1200[f]). In effect, the HCS created an information dissemination system in which employers obtain information from manufacturers, importers, and distributers of chemicals and, in turn, employers inform and train employees regarding potential hazards.
The HCS requires chemical manufacturers and im
6. See Federal Register 43, (1978):49726.
7. See also Code of Federal Regulations. Title 29, part 1911.
8. See Code of Federal Regulations, Title 29, sec. 1910.1000.
9. See also Code of Federal Regulations. Title 29, sec. 1905.
porters to prepare a material safety data sheet (MSDS) for every hazardous chemical produced or imported (29 CFR §1910.1200[g]). Limited exceptions exist for trade secrets.11 The initial MSDS and all subsequent revisions must be provided to all current and future distributers and manufacturing purchasers. Some of the minimum MSDS requirements include identifying the name and hazardous characteristics of the chemical, the health hazards of the chemical, the permissible exposure limit, precautions for safe handling and use, and emergency and first aid mea-sures.12 Employers must maintain copies of all MSDSs and assure that employees have access to them during working hours.
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