The Case for USA Participation in the Globally Harmonised System for the Classification and Labelling of Chemicals (GHS)

By Ilise L. Feitshans, JD and ScM Professor of Gender and Globalisation Professor of Fundamentals of Health in International Relations Geneva School of Diplomacy

Prepared for: Professor Alfred de Zayas JD International Law Geneva School of Diplomacy March 22 2010

I. Introduction: GHS, and its International Partnership Across UN Agencies

II. Issue: Whether a USA Administrative Agency has the Delegated Authority from the USA Congress to adhere to a programme under International Law A. Rationale For Action According to the Regulatory Agency B. Climate Change Favoring Ratification of Conventions and Enhanced USA Participation Towards International Lawmaking C. Ratification or Not: Swimming With the Global Tide Favoring GHS

III. Reservations Required for Effective Implementation A. Delegation Doctrine Possible Limits of Administrative Law B. Supremacy Clause Requirements Militate in Favor of Reaffirming International Labor Standards as A Condition of Participation

IV. Recommendations 1. The USA should allow OSHA to participate fully in the GHS. 2. The USA should take note that OSHA’s Actions are part of a greater interagency effort throughout the federal government designed to participate with the GHS consistent with international developments throughout this century and consistent with promoting the national interest for facilitating commerce, especially during the economic crisis. 3. The USA should use this opportunity to review the substantive activities of the GHS affiliate agencies in order to check for their own consistency in the operation of their organizations in order to ensure that such standards are not evaded and that the evasion of international labor standards does not become an accepted custom under international law

V. Conclusions: In perilous economic situations, nations who have the access to knowledge about effective safety and health for notorious risks must pool intellectual resources and share their intellectual wealth

I. Introduction: GHS, and its International Partnership Across UN Agencies “More than 25% of the global burden of disease is linked to environmental factors, including chemicals exposures. For example, about 800 000 children each year are affected by lead exposure, leading to lower intelligence quotients. … Worldwide, lead exposure also accounts for 2% of the ischaemic heart disease burden and 3% of the cerebrovascular disease burden. Artisanal gold mining in developing countries remains a significant cause of mercury exposure, while mercury-containing medical instruments such as thermometers and sphygmanometers are a continuing source of exposure in both developed and developing countries. Some 9% of the global disease burden of lung cancer is attributed to occupation and 5% to outdoor air pollution”1

Protecting human health and the environment is therefore a pivotal focal point for sustainable development.2 Internationally harmonized hazard communication is an important step forward in relieving the global burden of disease caused by preventable but harmful exposures to toxic and hazardous substances that are already subject to regulation in several nations, or are the subject of international scientific consensus regarding precautionary principles among non-governmental organizations.

The problem with implementing such protections, has historically remained the same since the 1970s: even where there is consensus about harm and the best practices that may reduce injury and illness, there is a vast array of accepted organizations that offer standards for safe handling of these chemicals.

The increasing world burden of illness combined with globalization of the use of the same or similar chemicals in commerce militates in favor of internationally consistent standards and best practices: in sum, the end user with modest or even sophisticated training regarding the safe handling and use of these substances must have access to clear and reliable data about best practices. Therefore the time has come when regulatory agencies in the United Nations system, individual governments, regional agencies such as the European OSHA, and non-governmental organizations that are aware of the urgent and simple means for protecting workers and end users regarding the safe handling of toxic or hazardous chemicals speak with one voice.

1 SIXTY-SECOND WORLD HEALTH ASSEMBLY A62/19 Provisional agenda item 12.14 23 April 2009 Strategic Approach to International Chemicals Management Report by the Secretariat IMPORTANCE OF SOUND MANAGEMENT OF CHEMICALS FOR THE PROTECTION OF HUMAN HEALTH

2 Implementation of the WHO’s International Programme for Chemical Safety (IPCS) is one component of the very complex endeavor involving over twenty five United Ntons Agencies. Regional groups such as the EU, governments and individual trade organizations. This effort, called the Globally Harmonized System for the Classification and Labelling of Chemicals (GHS) has participation by WHO under IPCS. IPCS has an established and internationally recognized leadership role in the preparation of risk assessments on specific chemicals and for developing and harmonizing hazard and risk assessment methods. These products include Concise International Chemical Risk Assessment Documents, International Chemical Safety Cards, Pesticide Data Sheets, and Poisons Information Monographs These products are of particular benefit to countries that may lack high levels of toxicological expertise. IPCS has already started work to promote consistency among hazard and risk assessment products with the global system for classification of hazards, with a view to enable national governments to use these products more effectively in implementing the GHS at the national level. This is the rationale behind the Globally Harmonized System for the Classification and Labelling of Chemicals, (“GHS”)3. GHS is centerpiece of many years of work at national, international and global levels. GHS was formally adopted by the new United Nations Committee of Experts on the Transport of Dangerous Goods and the Globally Harmonized System of Classification and Labelling of Chemicals in December 2002. In 2003, the adoption was endorsed by the Economic and Social Council of the United Nations. Developing countries and countries with economies in transition, which constitute the major importers and users of chemicals, are likely however, to face particular challenges in implementing the system and integrating it into good chemicals management practices. Cooperative global activities will continue their progress, too, after developing the global system and must continue towards implementation, maintenance and development.

Additonally, the World Health Organization (WHO) and a host of international organizations have agreed across several major international agreements that there exists a need for effective communication channels for information on chemical hazards from manufacturers and suppliers to downstream users. Mechanisms to assist, promote and build capacity to support such communication channels are of vital importance4 as recognized by several major international instruments.5 Completing GHS will be a significant achievement towards protecting world health and promoting the unification of best practices regarding the safe handling and use of toxic or hazardous substances under international law.

In accordance with the resolutions of the World Summit on Sustainable Development (WSSD) in 2002, the WHO is committed to implement this system. WHO’s IPCS is actively involved in engaging its Participating Institutions, which includes but is not limited to UNITAR; OECD, ILO and the governments of several nations in addition to the networks of health professionals and scientific experts who identify activities and processes that will assist countries to have the system fully operational as part of the ongoing flexible framework of the SAICAM, The WHO’s IPCS Harmonization Project enables governments and others to work towards the achievement of goals first outlined in Agenda 21 Chapter 19 in Rio in 1992 at the United Nations Conference on Environment and Development, detailed in the recommendations of the Intergovernmental Forum on Chemical Safety Bahia Declaration of 2000, reaffirmed by governments in the 2002 Johannesburg World Summit on Sustainable Development (WSSD) Plan of Implementation6, and further elaborated by governments and

3 The official text of the GHS, which was adopted on June 27, 2007, is available on the web at: http://www.unece.org/trans/danger/publi/ghs/ghs_rev00/00files_e.html 4 WHO/IPCS Meeting on Strengthening Global Collaboration in Chemical Risk Assessment .www.who.int/ipcs Statement by the International Programme on Chemical Safety (IPCS), World Health Organization, Geneva, Switzerland for the first meeting of Partners for the WSSD Global Partnership for Capacity Building to Implement the GHS. 5 Plan of Implementation of the World Summit on Sustainable Development. Document A/Conf.199/20, Annex.; 3 International Labour Conference, Ninety-fifth Session, Geneva 2006. Provisional Record 20A.; WHA60.26; Rio Declaration of Principles 6 Facts on Aligning the Hazard Communication Standard to the GHS INTERNATIONAL PROGRAMME ON CHEMICAL SAFETYHARMONIZATION PROJECT STRATEGIC PLAN 2005-2009 Harmonization of approaches to the assessment of risk from exposure to chemicals ww.who.int/entity/ipcs/methods/harmonization/strategic_plan_rev.pdf other stakeholders in the Strategic Approach to International Chemicals Management (SAICM) in Dubai 2006.7

Consistent with the Rio Principle of International environmental law that “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature”, GHS will standardize precautionary statements and first-aid instructions for labels and safety data sheets8. Also important is maintaining and continuing to develop the GHS to take account of hazards where there is a wealth of existing information about human exposures to chemicals in the home, in the workplace and via environmental media. Another area of cooperative global work where

7 WHO | International Programme on Chemical Safety. WHO/IPCS Meeting on Strengthening Global Collaboration in Chemical Risk Assessment in conjunction with 9th Meeting of the Harmonization Steering Committee www.who.int/ipcs 8 FIFTY-NINTH WORLD HEALTH ASSEMBLY WHA59.15 Agenda item 19 27 May 2006 Collaboration within the United Nations system and with other intergovernmental organizations, including United Nations reform process Strategic Approach to International Chemicals Management The Fifty-ninth World Health Assembly, Having considered the Strategic Approach to International Chemicals Management; Recalling the request in resolution WHA56.22 on the participation of global health partners in the further development of the strategic approach to international chemicals management for the completed strategic approach to be submitted to the Health Assembly for consideration; Recalling the first principle of the Rio Declaration on Environment and Development, namely, that “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature”;Recalling paragraph 23 of the Johannesburg Plan of Implementation3 adopted by the World Summit on Sustainable Development on 4 September 2002, and paragraph 56 of the 2005 World Summit Outcome adopted by the United Nations General Assembly on 16 December 2005,4 in which Heads of State and Government resolved to promote such a strategic approach; Welcoming the Strategic Approach to International Chemicals Management, consisting of the Dubai Declaration on International Chemicals Management, the Overarching Policy Strategy and the Global Plan of Action, as adopted by the International Conference on Chemicals Management in Dubai, United Arab Emirates, on 6 February 2006; … Welcoming the multisectoral nature of the Strategic Approach and the spirit of coordination and cooperation between the participating organizations of the Inter-Organization Programme for the Sound Management of Chemicals, and the important role of UNEP in the development and implementation of the Strategic Approach; … Mindful also of WHO’s contribution to the sound management of chemicals through the International Programme on Chemical Safety, a cooperative venture between ILO, WHO and UNEP,and the established joint programme of cooperation between WHO and the ILO on workers’ health; Recognizing the need for health interests at country level to be addressed in the implementation of the Strategic Approach to International Chemicals Management, 1. NOTES the Strategic Approach to International Chemicals Management as contained in the Dubai Declaration on International Chemicals Management, the Overarching Policy Strategy and the Global Plan of Action; 2. URGES Member States: (1) to take full account of the health aspects of chemical safety in national implementation of the Strategic Approach to International Chemicals Management; (2) to participate in national, regional and international efforts to implement the Strategic Approach, including the International Conference on Chemicals Management; (3) to nominate a national Strategic Approach focal point from the health sector, where appropriate, in order to maintain contact with WHO” implementation of the GHS may become important involves developing practical tools for controlling exposures to chemicals, particularly in small and medium size businesses.

One of these tools, known as control banding is currently being developed by WHO and ILO through IPCS, to use the agreed hazard classifications of chemicals identified through implementation of the GHS together with information about exposure potential to identify broad, simple and effective control approaches.9 In addition to the Rio framework and implementing principles, this approach is important for implementing the Joint WHO/ ILO Workers’ health: global plan of action10. This Plan of Action is consistent with opreationalizing the United Nations system and with other intergovernmental organizations. IPCS is actively involved in engaging its Participating Institutions, which includes but is not limited to UNITAR; OECD, ILO and the governments of several nations in addition to the networks of health professionals and scientific experts who identify activities and processes that will assist countries to have the system fully operational as part of the ongoing flexible framework of UN agencies. 9 - http://www.unitar.org/cwm/ghs_partnership/ - Meeting report [pdf 185kb] 10 SIXTIETH WORLD HEALTH ASSEMBLY WHA60.26, Agenda item 12.13 23 May 2007Workers’ health: global plan of action specifically states: The Sixtieth World Health Assembly, Having considered the draft global plan of action on workers’ health; Recalling resolution WHA49.12 which endorsed the global strategy for occupational health for all; Recalling and recognizing the recommendations of the World Summit on Sustainable Development (Johannesburg, South Africa, 2002) on strengthening WHO action on occupational health and linking it to public health;2 Recalling the Promotional Framework for Occupational Safety and Health Convention, 2006, and the other international instruments in the area of occupational safety and health adopted by the General Conference of the ILO;3 Considering that the health of workers is determined not only by occupational hazards, but also by social and individual factors, and access to health services; Mindful that interventions exist for primary prevention of occupational hazards and for developing healthy workplaces; Concerned that there are major gaps between and within countries in the exposure of workers and local communities to occupational hazards and in their access to occupational health services; Stressing that the health of workers is an essential prerequisite for productivity and economic development… 1. ENDORSES the global plan of action on workers’ health 2008– 2017; 2. URGES Member States: (1) to devise, in collaboration with workers, employers and their organizations, national policies and plans for implementation of the global plan of action on workers’ health as appropriate, and to establish appropriate mechanisms and legal frameworks for their implementation, monitoring and evaluation; … (3) to take measures to establish and strengthen core institutional capacities and human resource capabilities for dealing with the special health needs of working populations and to generate evidence on workers’ health and translate that evidence into policy and actions; (4) to develop and make available specific guidelines for the establishment of appropriate health services and surveillance mechanisms for human and environmental hazards and diseases introduced into local communities where mining, other industrial and agricultural activities have been set up to meet the associated needs of those communities; (5) to ensure collaboration and concerted action by all national health programmes relevant to workers’ health, such as those dealing with prevention of occupational diseases and injuries, communicable and chronic diseases, health promotion, mental health, environmental health, and health systems development; … (7) to encourage the development of effective mechanisms for collaboration and cooperation between developed and developing countries at regional, subregional and country levels in implementing the global plan of action on workers’ health; II. Issue: Whether a USA Administrative Agency has the Delegated Authority from the USA Congress to adhere to a programme under International Law

A. Rationale For Action According to the Regulatory Agency In its Federal Register notice of December 29 2009, 11 the leading agency for the promulgation, implementation and enforcement of standards to protect worker health in the USA has taken the final steps towards unifying their existing standards for “Hazard communication” within the GHS.

Under USA law, the Secretary of Labor is obligated to promulgate and enforce standards that provide “employment and places of employment that are free from recognized hazards”, under the auspices of the Occupational Safety and Health Administration (OSHA) in the USA Department of Labor. 12 In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of standards, and experience gained under this and other health and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired.13

Thus, once OSHA determines that a significant risk exists and that such risk can be reduced or eliminated by a proposed standard, section 6(b)(5) requires it to issue the standard, based on the best available evidence, that ``most adequately assures'' employee protection, subject only to feasibility considerations. As the Supreme Court has explained, in passing section 6(b)(5), ``Congress * * * place[d] worker health above all other considerations save those making attainment of this benefit unachievable.14'' A standard promulgated under this subsection can prescribe the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate medical treatment, and proper conditions and precautions of safe use or exposure. Labeling and employee warning requirements provide basic protections for employees in the absence of specific permissible exposure limits, particularly by providing employers and employees with information necessary to design work processes that protect employees against exposure to hazardous chemicals in the first instance. The Supreme Court has recognized such protective measures may be imposed in workplaces where chemical exposure levels are below that for which OSHA has found a significant risk.15. In that case, the US Supreme Court relied upheld medical monitoring requirements at exposures to benzene below the permissible exposure limit.

11 OSHA Hazard Communication Proposed Rule 74 Fed Reg. 50279-50549 and in 74 Fed Reg 68756-68758 amended (59 FR 6126, February 9, 1994. The USA Occupational Safety and Health Administration (OSHA) proposes to revise its Hazard Communication Standard (29 CFR 1200. et seq) which was set forth in 1983 and litigated ntil 1986, in order to render its system consistent with GHS. 29 CFR Parts 1910, 1915, and 1926 Hazard Communication; Proposed Rule . 12 29 USC 651 et seq., see Feitshans, DESIGNING AN EFFECTIVE OSHA COMPLIANCE PROGRAM Westlaw CORP C OSHA 13 29 U.S.C. 655(b)(5).

14 American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 509 (1981) (``Cotton Dust''). See: Ilise L Feitshans DESIGNING AN EFFECTIVE OSHA COMPLIANCE PROGRAM, Westlaw 15 IUD v API “The Benzene Case”, 448 U.S. at 657-58 & n.66

When determining whether such actions are allowed or required by the underlying Occupational Safety and Health Act of 1970, OSHA's conclusions must be ``supported by substantial evidence in the record considered as a whole.'' OSH Act Sec. 6(f), 29 U.S.C. 655(f). OSHA must use the ``best available evidence,'' which includes ``the latest scientific data in the field''; ``research, demonstrations, experiments, and such other information as may be appropriate''; and ``experience gained under this and other health and safety laws.'' OSH Act Sec. 6(b)(5), 29 U.S.C. 655(b)(5). The Supreme Court has held that OSHA is not required to support its finding of significant risk ``with anything approaching scientific certainty,'' and that the determination of whether a particular risk is `` `significant' will be based largely on policy considerations.'' OSH Act allows the Secretary to ``modify'' and ``revoke'' existing occupational safety or health standards. OSH Act Sec. 6(b), 29 U.S.C. 655(b). OSHA's Hazard Communication Standard (HCS) 16was first issued in 1983 and covered the manufacturing sector of industry17. In 1987, the Agency expanded the scope of coverage to all industries where employees are potentially exposed to hazardous chemicals after three years of litigation about the scope and effect of such disclosures. In 1994, OSHA made several minor changes and technical amendments to HCS. OSHA proposes to modify the current Hazard Communication Standard (HCS) to align with the provisions of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The existing but outdated HCS requires that chemical manufacturers and importers evaluate the chemicals they produce or import and provide hazard information to downstream employers and workers by putting labels on containers and preparing safety data sheets. These forms, called “Material Safety Data Sheets” (MSDS) are employer generated by use among downstream and end user populations, so of whom have very limited literacy. Furthermore, the existing MSDS are generated by the manufacturers themselves, as a matter of law, because of a long history in which their trade associations lobbied hard for so- called “performance standards” which do not dictate the precise format of disclosures, but only require a general flexible framework for disclosure to be met18. Even though it was the manufacturer Under the current HCS all employers must have a hazard communication program for exposed workers, including container labels, safety data sheets, and training. OSHA estimates that over 40 million workers in 5 million industries will have a better, safer and healthier workplace by updating the HCS to be consistent with the GHS. 19

16 29 CFR 1910.1200; 1915.1200; 1917.28; 1918.90; and 1926.59 but was subject to litigation for the first three years. The rule has been fully enforced in all industries covered by OSHA since March 17, 1989 (54 FR 6886, February 15, 1989).

17 Hazard Communication standard, notice proposed rulemaking, 48 FR 53280, November 25, 1983

18 Ilise L Feitshans Hazardous Substances in the Workplace: How Much Does The Employee Have the 'Right to Know'?" Detroit College of Law Rev., Fall Vol. 1985, Issue 19 The development of the HCS is discussed in detail in the preambles to the original and revised final rules. See 48 FR 53280-53281; 52 FR 31852-31854; and 59 FR 6127-6131. This discussion will focus on the sequence of events leading to the development of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS) and the modifications to the HCS included in this proposed rule.Information posted on US Department of Labor webpage concerning the rationale for rulemaking hearings regarding HCS and GHS. USDOL.gov. According to OSHA, the primary benefit of the GHS is to increase the quality and consistency of information provided to workers, employers and chemical users by adopting a standardized approach to hazard classification, labels and safety data. The GHS provides a single set of harmonized criteria for classifying chemicals according to their health and physical hazards and specifies hazard communication elements for labeling and safety data sheets. Under the GHS, labels would include signal words, pictograms, and hazard and precautionary statements and safety data sheets would have standardized format. OSHA's proposal to adopt the GHS will not change the framework and scope of the current HCS but will help ensure improved quality and more consistency in the classification and labeling of all chemicals. This will enhance worker comprehension, resulting in appropriate handling and use of chemicals. The harmonized format of the safety data sheets will enable workers to access the information more efficiently. In addition, currently multiple labels and safety data sheets must often be developed for the same product when shipped to different countries. This creates a major compliance burden for chemical manufacturers and those involved in international trade, increasing the cost of providing hazard information. By contrast, the one time expenditure of converting to the GHS will have the ong-term economic benefit of reducing the costs and confusion created when several different labels are required for shipping substances aborad. The adoption of GHS will minimize this burden. As the agency itself stated in the Federal register notice justifying this action:” the standardized format of the safety data sheets would enable critical information to be accessed more easily and quickly during emergencies. This can reduce the risk of injury, illness, and death to exposed employees and to rescue personnel and can reduce property damage” The USA DOL further states :  Major proposed changes to the HCS: o Hazard classification: Provides specific criteria for classification of health and physical hazards, as well as classification of mixtures. o Labels: Chemical manufacturers and importers will be required to provide a label that includes a harmonized signal word, pictogram, and hazard statement for each hazard class and category. Precautionary statements must also be provided.

 Safety Data Sheets: Will now have a specified 16-section format.  Thus, the rationale for this change is to facilitate the flow of commerce by streamlining the paperwork involved and by requiring the use of globally accepted symbols and pictograms in the transport of toxic and hazardous substances. There is little doubt that the agency has the authority to change its own rules regarding the format and the content of the Hazard communications forms called MSDS. This is consistent with both the Administrative Procedure Act (APA)20 of the USA and OSHA’s own history regarding rulemaking21. So too, the economic and social costs of occupational disease and illness within the USA requires stern attention with greater diligence than in the previous administrations because more than 5,000 workers are killed on the job in America each year, more than 4

20 Administrative Procedure Act 5 USA 556 et seq governes the powers of agencies to make rules within the parameters of their own statutory authority.

21 See discussion of “The Benzene Case” IUD v API 448 U.S. 657 in Ilise Feitshans DESIGNING AN EFFECTIVE OSHA COMPLIANCE PROGRAM and also "Law and Regulation of Benzene" in Environmental Health Perspectives, Vol 83, August 1989, National Institute of Environmental Health Sciences, Research Triangle Park North Carolina. million are injured, and thousands more will become ill in later years from present occupational exposures. 22 There is some question, however, whether there is authority for one administrative agency to accept the force and effect of the international system on behalf of the entire USA without the advise and consent of the US Congress and without making any reservations, regardless of the practical importance of such changes. This matter will be explored in the next section, followed by recommendations.

B. Climate Change Favoring Ratification of Conventions and Enhanced USA Participation Towards International Lawmaking Justice William O Douglas once wrote of inevitable but inexplicable moments of social change, when heretofore frozen social forces will give way to “the dynamic component of history”. This is a teachable moment in global history, and occupational safety and health principles and technologies that galvanize international human rights protections at work can rescue civilization from avoidable harms, and therefore, are a fundamental part of this dynamic component of history. For the first time in decades, a US President has aggressively discussed in public and before the US Congress the notion of “Ratification” -- after non proliferation treaties, a host of long-tabled human rights treaties and conventions are sure to follow. This new Presidential initiative is much more than a nostalgic intellectual walk down memory lane for those who sought ratification of ILO Conventions decades ago. When the USA President dares to whisper in the corridors of the US Congress the taboo word, “ratification” and if the USA carries through on this promise to blow the winds of change stronger than a mere whisper, many nations are sure to follow. Preventing harm and protecting this right is achieved by carefully blending science and established legal principles, when crafting and then implementing sensible policies that protect every constituent and stakeholder in the world: workers, employers-- large, multinational or small-- and the people of represented by their governments. This is admixture of law and science is necessary for civilization to survive. The work to be done in these times touches destiny GHS is the first positive indicator of the winds of change that may blow in ratification’s direction.

C.Ratification or Not: Swimming With the Global Tide Favoring GHS

“States shall facilitate and encourage public awareness and participation by making information widely available,” Rio Declaration Principle 10.

22 TESTIMONY OF DAVID MICHAELS ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH U.S. DEPARTMENT OF LABOR BEFORE THE SUBCOMMITTEE ON WORKFORCE PROTECTIONS THE COMMITTEE ON EDUCATION AND LABOR U.S. HOUSE OF REPRESENTATIVES MARCH 16, 2010, “thank you for the opportunity today to share the Department of Labor's views on the Protecting America's Workers Act (PAWA)... Until 1970 there was no national guarantee that workers throughout America would be protected from workplace hazards. In that year the Congress enacted a powerful and far- reaching law—the Occupational Safety and Health Act of 1970 (OSH Act). The results of this law speak for themselves. The annual injury/illness rate among American workers has decreased by 65 percent since 1973, and while there are many contributing factors, the OSH Act is unquestionably among them. Employers, unions, academia, and private safety and health organizations pay a great deal more attention to worker protection today than they did prior to enactment of this landmark legislation…. Good jobs are safe jobs, and American workers still face unacceptable hazards. More than 5,000 workers are killed on the job in America each year, more than 4 million are injured, and thousands more will become ill in later years from present occupational exposures” The International Labour Organization Convention Number 170 231990 “Convention concerning Safety in the use of Chemicals at Work”, states: it is essential to prevent or reduce the incidence of chemically induced illnesses and injuries at work by: (a) ensuring that all chemicals are evaluated to determine their hazards; (b) providing employers with a mechanism to obtain from suppliers information about the chemicals used at work so that they can implement effective programmes to protect workers from chemical hazards; (c) providing workers with information about the chemicals at their workplaces, and about appropriate preventive measures so that they can effectively participate in protective programmes; (d) establishing principles for such programmes to ensure that chemicals are used safely,.. “

It is noteworthy that there are 17 ratifications on record for this convention, 24 although the USA is not among the countries that have engaged in ratification. According to Dixon “Ratification is the process whereby a state finally confirms that it intends to be bound by a treaty that it has previously signed, consent not being effective until such ratification”.25 Dixon notes that consent may, through custom ripen into international law, but also that assuming the state has proper authority, the real test is intent. Since the USA has not signed the ILO Convention it is premature to ask whether the GHS, administered by ILO in part, is consistent with USA ratification.

It is important to note, however, that the USA has signed the ILO Constitution, both after the World War Two (Philadelphia 1946) and before that, under the League of Nations. Whether such signature and ratification of membership in the ILO gives rise to legal obligations regarding specific instruments such as narrowly focused conventions, however, is an open question. Furthermore, even if one were to accept Dixon’s notion that sufficient acceptance by a large number of States can ripen into international law by custom, as in the case of the Law of the Sea with over 100 ratifications, seventeen is a number that is clearly too low to establish custom for the entire world. 26

23 C170 Chemicals Convention, 1990Convention concerning Safety in the use of Chemicals at Work (Note: Date of coming into force: 04:11:1993.) Convention:C170, Geneva Session of the Conference:77 , International Labour conventions and Recommendations 1977-1995, Voluma iii Published by the International Labour Office Geneva Switzerland 1996. p 337

24 ilo.org Source: ILOLEX - 22. 3. 2010) Brazil, Burkina Faso, China, Colombia, Dominican Republic, Germany, Italy, Republic of Korea, Lebanon, Luxembourg, Mexico, Norway, Poland, Sweden, Syrian Arab Republic, Tanzania United Republic of , Zimbabwe

25 Martin Dixon, Textbook on International Law 6th edition Oxford University Press 2007 at 65

26 Martin Dixon, Textbook on International Law 6th edition Oxford University Press 2007 at 65. See also Dixon’s excellent discussion of the role of pacta sunt sservanda regarding the implications of signature and ratifications by an overwhelming majority of States or by the terms of the plain meaning as expressed by the States. Unfortunately there seems to be no such case for USA compliance with any of these principles in relation to GHS, therefore one can only hope that other grounds exist for the nation to participate in and comply with the swiftly emerging international law on the subject of safe handling of toxic and hazardous substances. Nonetheless, GHS is not inconsistent with the current trend that may ripen into custom under international law. Similar streamlining efforts, designed to reduce the paperwork burden on industry and to prevent the confusion from conflicting systems for best practices, information disseminated during training and danger warnings are underway in the EU, afriend of the GHS process. As the GHS process is underway, the “Registration, Evaluation, Authorization and Restriction of Chemical Substances27 or “REACH” program, will result in registration of information in a central database established by the European Chemicals Agency (ECHA) in Helsinki. Over its 11-year phase-in, the regulation will require progressive substitution of dangerous chemicals as alternatives are identified. Manufacturers and importers will be required to gather information on the properties of their chemical substances, which will allow their safe handling, and to register the information in a central database run by the new European Chemicals Agency (ECHA). ECHA will act as the central point in the REACH system: it will manage the databases necessary to operate the system, coordinate the in-depth evaluation of suspicious chemicals, and run a public database in which consumers and professionals can find hazard information. Pre-registration of substances began in 2008.28

The need for the precise clarification that can only come from international harmonization of disclosure formats, however, is without dispute. Within the USA itself, several regulatory authorities exercise jurisdiction over chemical hazard communication. In addition to OSHA's HCS, the Department of Transportation (DOT) regulates chemicals in transport, the Consumer Product Safety Commission (CPSC) regulates consumer products, and the Environmental Protection Agency (EPA) regulates pesticides, as well as having other authority over labeling under the Toxic Substances Control Act. Each of these regulatory authorities operates under different statutory mandates, and has adopted distinct hazard communication requirements. Tracking the hazard communication requirements of different regulatory authorities is a burden for manufacturers, importers, distributors, and transporters engaged in commerce in the domestic arena. This burden is magnified by the need to develop multiple sets of labels and safety data sheets for each product in international trade. Small businesses may have particular difficulty in coping with the complexities and costs involved. The problems associated with differing national and international requirements were recognized and discussed when the HCS was first issued in 1983, but are exacerbated by the practical realities if the USA fails to participate in the international harmonization of hazard communication requirements. Therefore the agency stated: * * * [O]SHA acknowledges the long-term benefit of maximum recognition of hazard warnings, especially in the case of containers leaving the workplace which go into interstate and international commerce. The development of internationally agreed standards would make possible the broadest recognition of the identified hazards while avoiding the creation of technical barriers to trade and reducing the costs of dissemination of hazard information by

27 ” (REACH; EC 1907/2006) regulation also went into effect on June 1, 2007. The aim of REACH is to protect human health and the environment through better and earlier identification of the intrinsic properties of chemical substances and to require manufacturers and importers to gather information on the properties of their chemicals. 28 Global Harmonization of Chemical Classification By Jean H. McCreary, webpage of the law firm of Nixon Peabody March 20 2010. elimination of duplicative requirements which could otherwise apply to a chemical in commerce. 29

Since June 1992, the United Nations Conference on Environment and Development issued a mandate (Chapter 19 of Agenda 21), supported by the U.S., calling for development of a globally harmonized chemical classification and labeling system: The Agency has also had bilateral discussions in the past with Canada, as well as the European Union (EU), on issues related to implementation. Following the international mandate from the previous century, a coordinating group comprised of countries, stakeholder representatives, and international organizations was established to manage the work. This group, the Inter-Organization Programme for the Sound Management of Chemicals Coordinating Group for the Harmonization of Chemical Classification Systems, established overall policy for the work and assigned tasks to other organizations to complete. The Coordinating Group then took the work of these organizations and integrated it to form the GHS. OSHA served as chair of the Coordinating Group.

The work was divided into three main parts: Classification criteria for physical hazards; classification criteria for health and environmental hazards (including criteria for mixtures); and hazard communication elements, including requirements for labels and safety data sheets. The criteria for physical hazards were developed by a United Nations Subcommittee of Experts on the Transport of Dangerous Goods/International Labour Organization working group and were based on the already harmonized criteria for the transport sector. The criteria for classification of health and environmental hazards were developed under the auspices of the Organization for Economic Cooperation and Development. The ILO developed the hazard communication elements30.

OSHA participated in these deliberations, serving as USA lead agency through cooperation withteh Department of State31, regarding classification of mixtures and hazard communication. The primary approach to reconciling these systems involved identifying the relevant provisions in each system; developing background documents that compared, contrasted, and explained the rationale for the provisions; and undertaking negotiations to find an agreed approach that addressed the needs of the countries and stakeholders involved. Principles to guide the work were established, including an agreement that protections of the existing systems would not be reduced as a result of harmonization. Thus countries could be assured that the existing protections of their systems would be maintained or enhanced in the GHS. GHS will be updated as necessary to reflect new technology and scientific developments, or provide additional explanatory text.

29 48 FR 53287

30 Four major existing systems served as the primary basis for development of the GHS. These systems were the requirements in the U.S. for the workplace, consumers and pesticides; the requirements of Canada for the workplace, consumers and pesticides; European Union directives for classification and labeling of substances and preparations; and the United Nations Recommendations on the Transport of Dangerous Goods. The requirements of other systems were also examined as appropriate, and taken into account as the GHS was developed. 31 An interagency committee under the auspices of the Department of State coordinated U.S. involvement in the development of the GHS. In addition to OSHA, DOT, CPSC, and EPA, there were a number of other agencies

VI. Reservations Required for Effective Implementation A. Delegation Doctrine Possible Limits of Administrative Law

In the decades that have passed since IUD v API (“The Benzene Case”) discussed above, interest in challenging OSHA’s statutory authority has waned. It should not be overlooked, however, that it was in the Benzene case that Chief Justice William Rehnquist challenged the very existence of OSHA as an agency32. He claimed in his dissent from the plurality opinion that Congress had no right to give such regulatory authority over toxic and hazardous subtances to the agency. Whether this change is due to clarification of the law of significant risk, agency self-restraint in the use of its regulatory authority or simply the passage of time which has hardened the inchoate rights of the agency as a rulemaker and source of law remains unclear.

It is clear however, that the question of delegation has not been asked and therefore remains unanswered. It is unclear, also, whether under this standard of law, the mere fact that one federal USA agency has worked in close co-operation with a host of USA federal agencies, strictly within the scope of its delegated authority but without the advise and consent of Congress, mans that there exists a clear US Constitutional permission for such activities. The practical realities, which are so very often the driver of international law, are likely to carry the day nonetheless.

It would be foolhardy and backwards of the USA to refrain from participation in the development and operationalizing of the GHS, given the attendant activity that will make sweeping changes in the international chemical safety system whether the USA were to participate or not. Furthermore, it would be difficult for any court sitting in administrative judgment of such agency activities to reject the notion that these actions are indeed in the USA’s national interest. The only questions that remain, therefore, are whether there are any aspects of the development or implementation of these standards that require further ongoing scrutiny in the form of a reservation or other commentary, in order to protect the USA’s larger long-standing concern for balancing national or domestic law with the demands of commerce in international relations.

B. Supremacy Clause Requirements Militate in Favor of Reaffirming International Labor Standards as A Condition of Participation

George Washington, the First President of the USA warned in his farewell address of the need to be wary of foreign “entanglements”. What would George Washington, a sharp businessman, who owned vast amonts of land that he sold to the federal government for revolutionary munitions plants, think of the GHS? Would he see the practicality or would he consider it a foreign entanglement? The answer to this political question depends on how far the GHS should go. Clearly, it is an agenda item of the federal USA governemtn and therefore can easily be upheld as an administrative activity within the scope of promoting the national interest. But, what is to

32 Industrial Union Dep't v. American Petroleum Institute, 448 U.S. 607, 642 (1980) (``Benzene''). See also Ilise Feitshans "Law and Regulation of Benzene" in Environmental Health Perspectives, Vol 83, August 1989, National Institute of Environmental Health Sciences, Research Triangle Park North Carolina, Publishers. become of the fact, unrecognized to date, that it is also a vehicle for the ripening of customary law into hard international law. The implications of this latter question are both unexplored and unclear. GHS is an internationally harmonized system for classifying chemical hazards and developing labels and safety data sheets. But, GHS is not a model standard that can be adopted verbatim. Rather, it is a set of criteria and provisions that regulatory authorities can incorporate into existing systems, or use to develop a new system. The GHS is designed to allow regulatory authorities to choose provisions that are appropriate to their particular sphere of regulation. This is referred to as the ``building block approach.'' The GHS includes all of the regulatory components, or building blocks, that might be needed for classification and labeling chemicals in the workplace, transport, pesticides, and consumer products. While there remains a strong political climate for international participation, a strong economic imperative for conforming to the practical realities of the customs and behaviors and trading partners, and a clear statutory mandate to achieve the stated goals of GHS under USA law, this concern should not be unbridled. Such GHS participation should therefore be tempered also with a concern to reaffirm the fundamental tents if USA labor law, and to ensure both the quality of the credentials and the quality of life of international civil servants who will work within this system, insofar as their safety and health is concerned. It should be made very clear by the USA Department of Labor that nothing in the use of these customs and practices shall be deemed to allow the undermining of traditional tenets of USA labor law, also administered by the same department. The narrow scope of GHS is clear, but the looming precedent of the shadow it may create by allowing a creeping deminuation of USA Department of Labor power should be prevented, by reaffirming the clear limits of this program in relation to USA labor law. The best way to achieve these ends is to have a reservation requiring transparency and oversight. The provisions of such a reservation could require that the USA reserves the right under the GHS system to inspect the working conditions of any or all civil servants involved in the handling of such covered substances, in, for example, laboratories and field offices, and that OSHA shall retain its rights of enforcement of protections in order to prevent any dilution of existing HCS protections as a matter of custom under international law.

VII. Recommendations 4. The USA should allow OSHA to participate fully in the GHS. 5. The USA should take note that OSHA’s Actions are part of a greater interagency effort throughout the federal government designed to participate with the GHS consistent with international developments throughout this century and consistent with promoting the national interest for facilitating commerce, especially during the economic crisis. 6. The USA should use this opportunity to review the substantive activities of the GHS affiliate agencies in order to check for their own consistency in the operation of their organizations in order to ensure that such standards are not evaded and that the evasion of international labor standards does not become an accepted custom under international law

While there remains a strong political climate for international participation, a strong economic imperative for conforming to the practical realities of the customs and behaviors and trading partners, and a clear statutory mandate to achieve the stated goals of GHS under USA law, this concern should not be unbridled. It should be tempered also with a concern to reaffirm the fundamental tents if USA labor law, and to ensure both the quality of the credentials and the quality of life of international civil servants who will work within this system, insofar as their safety and health is concerned.

VIII. Conclusions: In perilous economic situations, nations who have the access to knowledge about effective safety and health for notorious risks ranging from asbestos to safe and clean nuclear power—must pool intellectual resources and share their intellectual wealth

Countries have been encouraged to implement the GHS as soon as possible, and established a goal to have fully operational systems by 2008. This goal was adopted by countries in the Intergovernmental Forum on Chemical Safety, and was endorsed by the World Summit on Sustainable Development. The U.S. participated in these groups, and agreed to work toward achieving these goals. While much progress was made by the U.S. and other countries by the end of 2008, most are still in the process of implementing the GHS.

Sound occupational health programs that implement best strategies are the grease for the machinery of powerful economic engines. Information provided through occupational heath programs helps employers survive because accidents and disease are not simply expensive but wasteful. We cannot afford waste in this economy. The fat to be trimmed, however is not the same as the grease for the wheels and machinery that makes smooth commerce. In perilous economic situations, nations who have the access to knowledge and the tried and true methods for safe handling of toxic and hazardous substances--- from asbestos to nuclear power--- must pool their intellectual resources and move forward with teaching the world about best practices. APPENDIX ONE: ACTIVITY BETWEEN IPCS AND OECD ASSESSMENT PROGRAMMES 1. The following "rules of thumb" provide guidance in helping countries and industry to avoid the potential for conducting inadvertent duplicative assessment work under the auspices of the International Programme on Chemical Safety (IPCS) and the Organization for Economic Co- operation and Development (OECD). Comment on the usefulness of these “rules of thumb” is welcome. The relevant assessment programmes are those involved in the preparation of IPCS Environmental Health Criteria Documents (EHC) and Concise International Chemical Assessment Documents (CICADS) and the OECD's High Production Chemicals Programme with associated Screening Information Dataset Assessment Reports (SIARS).

2. The rules of thumb have been developed based on discussions of the Technical Co- ordinating Group on Existing Chemicals and Pollutants of the Inter-Organization Programme for the Sound Management of Chemicals (IOMC). The objectives of this group include assisting co-ordination of selection by countries and authoring institutions of chemicals for which international assessments are developed in order to avoid duplication and providing guidance and direction to countries regarding the most appropriate international assessment route to be followed in order to meet their own objectives as well as those of the global community.

3. The IOMC Technical Co-ordinating Group on Existing Chemicals holds the view that each assessment programme has its own individual strengths and orientation.

_ The OECD HPV Chemicals Programme ensures the common acceptance of the initial hazard assessment based on a Screening Information Dataset for chemicals produced in quantities greater than 1 tonne in any OECD Member country.

_ The IPCS CICAD programme adds value internationally to recognised existing assessment reports. It focuses, in particular, on chemicals with data beyond the OECD Screening Data Set and on chemicals that are already considered in need of a more detailed assessment, and provides a sample risk characterisation. The inclusion of chemicals in the IPCS CICAD programme also takes into consideration the usefulness of carrying out the assessment for countries at different stage of development. These chemicals may or may not be in high production volume in the OECD and often include inorganics and naturally occurring chemicals, otherwise not dealt with by the OECD HPV Programme.

4. Efforts to build synergies between the programme should be exploited, particularly since there are many similarities in the information needs for assessment and the assessment methodologies followed. The IOMC Co-ordinating Group agreed that there was an overwhelming need to share the burden of international work. The need to work towards common formats for presenting summary information to be used globally in assessments and especially the use of robust study summaries to report key results is emphasised as being important.

5. The development of some rules of thumb to provide guidance to Member countries/States for how to deal with cases of potential duplication were proposed by the IOMC Technical Co- ordinating Group to be developed to provide further practical guidance for reducing the potential for duplication and for encouraging greater collaborative work. 6. At the outset, the relevant IPCS and OECD websites should be used to find out whether any existing assessment work is planned, currently underway or completed. OECDs HPV Tracking System ( http://cs3-hq.oecd.org/scripts/hpv/) and the Risk Assessment Homepage of the IPCS are relevant here for CICADs (http://www.who.int/pcs/ra_site/cicads.htm) and for EHCs (http://www.who.int/pcs/ra_site/ehc.html).

7. Consultation within a country among agencies, industry and institutions carrying out assessment work to be considered internationally should also be undertaken to identify further sources of information and to co-ordinate efforts nationally.

"Rules of Thumb" 8. Irrespective of whether a chemical starts its international assessment in the IPCS or the OECD assessment programmes, there is a need to share the burden of work. The following points are identified to assist in considering where to nominate the chemical for assessment. IPCS and OECD Secretariats will continue to coordinate and monitor efforts in applying these rule of thumb to improve the guidance wherever possible.

_ In cases where the chemical is produced in high production volume (greater than 10 tonnes in any one country) and there are significant basic information gaps or little public availability of information, the OECD HPV Chemicals Programme provides an important mechanism for ensuring existing information is identified and agreed testing is conducted on Screening Information Data Set (SIDS) endpoints.

_ Where data exists beyond the OECD SIDS and existing information shows that all SIDS endpoints are adequately filled, then the IPCS CICAD Programme provides a way of gaining rapid international assessment and peer review of the existing information.

_ Where the chemical is not in high production volume but concerns exist in either an OECD Member country or a country with an economy in transition, then an IPCS CICAD might be considered as a relevant starting point.

_ Where there are plausible reasons for conducting an assessment in either of the IPCS or OECD assessment programmes, the following should provide a system of alerts, so that particular care should be exercised when considering whether further assessment is needed, or as appropriate for deciding on priorities:

In general, _ Initiation of an OECD SIAR should not be undertaken when there is an IPCS CICAD or EHC which has considered information over the preceding five years (unless significant new SIDS information is available). _ Initiation of a new OECD SIAR should not be undertaken if a current assessment is underway or planned to be completed in the next two years. An additional check with the IPCS Secretariat should be made to ensure that the SIDS endpoints are sufficiently covered. _ If an OECD SIAR has been selected or in the information gathering stage for longer than 5 years, and a high quality national assessment report becomes available then this fact should be brought to the attention of IPCS/OECD Secretariats to help decide the most effective way of proceeding. ne of these tools, known as control banding is currently being developed by WHO and ILO through IPCS, to use the agreed hazard classifications of chemicals identified through implementation of the GHS together with information about exposure potential to identify broad, simple and effective control approaches.33 In addition to the Rio framework and implementing principles, this approach is important for implementing the Joint WHO/ ILO Workers’ health: global plan of action34. This Plan of Action is consistent with opreationalizing the United Nations system and with other intergovernmental organizations, including United Nations reform process Strategic Approach to International Chemicals Management .

33 - http://www.unitar.org/cwm/ghs_partnership/ - Meeting report [pdf 185kb] 34 SIXTIETH WORLD HEALTH ASSEMBLY WHA60.26, Agenda item 12.13 23 May 2007Workers’ health: global plan of action specifically states: The Sixtieth World Health Assembly, Having considered the draft global plan of action on workers’ health; Recalling resolution WHA49.12 which endorsed the global strategy for occupational health for all; Recalling and recognizing the recommendations of the World Summit on Sustainable Development (Johannesburg, South Africa, 2002) on strengthening WHO action on occupational health and linking it to public health;2 Recalling the Promotional Framework for Occupational Safety and Health Convention, 2006, and the other international instruments in the area of occupational safety and health adopted by the General Conference of the ILO;3 Considering that the health of workers is determined not only by occupational hazards, but also by social and individual factors, and access to health services; Mindful that interventions exist for primary prevention of occupational hazards and for developing healthy workplaces; Concerned that there are major gaps between and within countries in the exposure of workers and local communities to occupational hazards and in their access to occupational health services; Stressing that the health of workers is an essential prerequisite for productivity and economic development… 1. ENDORSES the global plan of action on workers’ health 2008– 2017; 2. URGES Member States: (1) to devise, in collaboration with workers, employers and their organizations, national policies and plans for implementation of the global plan of action on workers’ health as appropriate, and to establish appropriate mechanisms and legal frameworks for their implementation, monitoring and evaluation; … (3) to take measures to establish and strengthen core institutional capacities and human resource capabilities for dealing with the special health needs of working populations and to generate evidence on workers’ health and translate that evidence into policy and actions; (4) to develop and make available specific guidelines for the establishment of appropriate health services and surveillance mechanisms for human and environmental hazards and diseases introduced into local communities where mining, other industrial and agricultural activities have been set up to meet the associated needs of those communities; (5) to ensure collaboration and concerted action by all national health programmes relevant to workers’ health, such as those dealing with prevention of occupational diseases and injuries, communicable and chronic diseases, health promotion, mental health, environmental health, and health systems development; … (7) to encourage the development of effective mechanisms for collaboration and cooperation between developed and developing countries at regional, subregional and country levels in implementing the global plan of action on workers’ health;