A Hazardous Mix: Discretion to Disclose and Incentives to Suppress Under OSHA's Hazard Communication Standard
22 Pages Posted: 24 Mar 2016
Date Written: March 1988
National surveys have shown that industrial chemical manufacturers fail to provide information identifying ingredients and warning of hazards with most of their products. This practice leads workers to expose themselves unknowingly to chemical dangers, leaves them unaware of the true causes of chemically induced diseases, and gives rise to injuries, premature deaths, lost productivity, and medical and social welfare costs.
After years of delay, OSHA in 1983 promulgated the Hazard Communication Standard (HCS). HCS requires chemical manufacturers to provide warnings with products they deem to be dangerous. Except for prescribing that a relatively small list of proven carcinogens must be labeled as hazardous, HCS leaves decisions about the elements and scope of adequate evaluation procedures to the "professional judgment" of manufacturers. HCS presents a manufacturer with two options: It may decide that a chemical is a health hazard and thereby obligate itself to comply with extensive labeling and reporting requirements," or it may decide that a product is not hazardous, and label it by trade or code names only. Courts have held that HCS preempts overlapping provisions of state "right-to-know" statutes, many of which contain more stringent hazard disclosure requirements. This Note argues that the wide discretion given manufacturers in performing hazard evaluations under HCS renders the standard ineffective.
Keywords: OSHA, hazardous materials, Hazard Communication Standards
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