Industry Seeks Hazcom Review in Supreme Court

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INDUSTRY SEEKS HAZCOM REVIEW IN SUPREME COURT

The hazard communication standard (HCS) is currently the subject of four petitions for review by the Supreme Court. The petitions all stem from a decision last November by the Third Circuit Court of Appeals that lifted an earlier stay and extended the hazcom rule's scope to include the construction industry.

The petition by the Associated Builders and Contractors (ABC) challenges the Third Circuit's order curtailing statutorily mandated notice and comment procedures. In August 1987, the court ordered OSHA to expand the standard to include the nonmanufacturing sector without first seeking additional public comment.

"The revised HCS was issued without regard to statutorily mandated rulemaking procedures, pursuant to an extraordinary series of orders by the Court of Appeals for the Third Circuit," ABC's petition, filed in December 1988, states. "As a result of the Third Circuit's order and OSHA's attempt to comply therewith, millions of employers have been deprived of any meaningful opportunity to comment." The new standard, the petition argues, "imposes tremendous burdens on small businesses without any improvement in workplace safety."

ABC also disputes the Third Circuit's August 1988 ruling that the Office of Management and Budget (OMB) overstepped its authority in disapproving three provisions of the hazcom standard. Those provisions are: . The requirement that employers exchange material safety data sheets (MSDS's) at multi-employer worksites. . An exemption from the requirements of the standard limited to consumer products used in the workplace in the same manner and quantities as intended for consumer use. . An exemption for drugs limited to those in tablet or pill form regulated by the Food and Drug Administration.

Both the ABC petition and a petition filed by the Associated General Contractors (AGC) contest the Third Circuit's failure to require OSHA to determine whether the provisions of the revised standard were necessary and appropriate to reduce the risk of harm to workers in the construction industry. According to the two trade associations, the Third Circuit failed to require OSHA to demonstrate that the revised standard is feasible within the "unique circumstances of the construction industry. …