What Has HMIRA Done

What Haz the New HMIRA Done, and Why Does it Mat? Omar Ha-Redeye AAS, BHA(Hons.), CNMT, RT(N)(ARRT), J.D. Candidate Ha-Redeye Development Inc.

Agenda
Part 1 – Background Information
Part 2 – New Amendments
Part 3 – The Future

What the HMIRA?
Workplace chemicals regulated in Canada
Hazardous Products Act (HPA)
Canada Labour Code (CLC)
Hazardous Materials Information Review Act ( HMIRA ) allows identity of chemicals to be protected as trade secrets
Managed by HMIRC

Ok, But What the HMIRC?
Hazardous Materials Information Review Commission established in 1987
held accountable to Parliament through the Ministry of Health
independent quasi-judicial agency
protect the safety of our workers in Canada
part of the Workplace Hazardous Materials Information System
provides workers with information about health and safety

What are WHMIS?
product labels, material data safety sheets available to employees and workers who handle hazardous materials
provide workers with information important for protection
different types of hazardous ingredients working with
specific risks encountered when utilizing those products
precautions on how to store and transport products
how to ensure the proper disposal of products
first aid measures if there is any type of accidental exposure
vital and important role in educating workers, ensuring their safety

Main Functions of HMIRC
Adjudicates, issues decisions on the validity of claims for exemptions using prescribed regulatory criteria
Makes decisions on the compliance of MSDS and labels to WHMIS requirements
Convenes independent boards with representatives drawn from labour, suppliers, or employers to hear appeals from claimants or affected parties on decisions and orders

Commission Governance
Council of Governors acts as an advisory body, provides strategic advice and guidance
up to 18 members representing key stakeholders
2 representing workers,
1 representing suppliers,
1 representing employers,
1 representing the federal government,
4 - 13 representing provincial and territorial governments responsible for occupational health and safety

Kavanagh v. Treasury Board
Kavanagh v. Treasury Board [2000] C.P.S.S.R.B. No. 3 (MacLean) ‏
Correctional officer at a prison
Outside contractor painting gallery, left a strong smell
Requested MSDS under s. 125.1 of Canada Labour Code, invoked right to refuse to work under s. 128
Held: employer failed to act in accordance with its duty under sections 124 and 125.1.

Part 2 – New Amendments

3 Main Amendments
reduces administrative burden for documentation
label applications as confidential
commission only review applications if challenged on the basis of confidentiality
voluntary correction of material safety data sheets and product labels
If correction required to product labels or MSDS, has to appear in Canada Gazette through a formal order
not binding until 75 days after it has been publicized
workers cannot receive appropriate information until 75 days after it has appeared in the Canada Gazette
improves the appeals process
Allows for commission to speed up the process

Impetus Behind Changes
Foreign-based clients producing chemicals used in Canada 40% of HMIRC clients (1999) ‏
Little or no knowledge of Canadian regs
Educate, bring into compliance
Assumption in 1988 of 1,500 claims/year
Actual (1999) of 190/year
Are they actually overworked?
Reducing admin burden
Focus on MSDS and labels

Purpose of Amendments
Renewal program started 1998
Amendments first introduced in 2002
interrupted by two elections
manufacturers of hazardous materials can become exempt from providing full disclosure of the nature of their products
where that disclosure would force to reveal trade secrets
value of the trade secrets protected around $624 million/year
A balance:
the workers' right to know about the hazardous materials they deal with in the workplace
the industry's right to protect confidential business information

Other Amendments
Related Acts
Hazardous Materials Information Review Regulations
Hazardous Materials Information Review Act Appeal Board Procedures Regulations
Allow electronic filing of claims
Costly, inconvenient by mail or person
Compliance with Modernization of Benefits and Obligations Act
Replace 'related groups' and 'persons' with no personal interest
Allow access to HMIRC decisions to staff for training and policy purposes

More Debate on Compliance
NDP: 95% of MSDS not compliant with legislation
Libs: Not necessarily unsafe; union support for amendments
CPC: shortcomings potentially a major threat
Avg 9 violations/yr from those investigated
failure to identify the effects of exposure
failure to identify risks of fire or explosion
failure to provide adequate information on the appropriate first aid measure if a worker is accidentally exposed to a hazardous material
Libs: Fairly serious problem (2004-2005)
92 violations concentration ratio of hazardous ingredients missing, incorrect
47 violations in contact information; name or telephone missing
101 violations concerning reactivity or incompatibility with other products
119 violations regarding the effects of acute exposure (toxicological properties)
127 violations pertaining to the effects of chronic exposure
85 violations regarding exposure limits
80 instances where manufacturers of first aid products removed information
84 instances no description of treatment for skin contact

Position of Labour
Got best they could to protect workers
didn’t strengthen it appreciably, but prevented it from getting substantially weakened
Could have reduced structure to make it requirement that HMIRC recover own costs
Currently cost recovery 20-35% from industry, rest from government
Could have reduced scope and depth of MSDS review for only one ingredient for exemption instead of entire data sheet

Language and Training Issues
NDP raised issue of replacement workers during debate
Do not have appropriate procedures
No organized workforce
Safety issues were lax
Can training be provided in other languages?
BQ: French versions are slow to come out

Part 3 – The Future

Priorities for the Future
efficient client service delivery
management excellence
modernized legislation
international harmonization

Burn that Paper (or Recycle It)
Paperwork Burden Reduction Initiative (PBRI), launched in February 2005
Canadian Federation of Independent Businesses (CFIB):
red tape costs businesses $33 billion/yr
Possible future HMIRA amendments:
separate out consumer products from WHMIS
Globally Harmonized System for the Classification and Labelling of Chemicals (GHS)

What About Asbestos?
Canada is third largest producer and exporter in the world
“ Dumped” into developing countries
220,000 tonnes/year in India, Thailand, Senegal
Rotterdam Convention: Canada opposed inclusion of asbestos on hazardous materials list
Convention doesn’t seek to ban
Only caution about its dangers
Proposal to include amendment about international obligations

Gaps, Areas of Concern
International harmonization
EU, Australia do not allow trade secrets for specific chronic endpoints, i.e. carcinogenicity, chronic toxicity
enables companies to sell, distribute and/or use their product while claim is being processed
Concerns over abuse with voluntary attestation
Is HMIRC scope too narrow?

Expanded Role for WHMIS?
Commission looks at tiny percentage of WHMIS sheets, 10ks out there
Pesticides not currently reviewed
Pest Management Regulatory Agency would want to do it
Ideally cover consumer products as well
Adopted by EU

Risk Creator Pays System
Major issue for HMIRC is costs
Amendments will help, but may not be enough
Use polluter pays principles with chemical industry
To encourage sustainable development, that principle assigns polluters the responsibility for remedying contamination for which they are responsible and imposes on them the direct and immediate costs of pollution. At the same time, polluters are asked to pay more attention to the need to protect ecosystems in the course of their economic activities.
(Imperial Oil Ltd. v. Quebec and St. Lawrence Cement Inc. v. Barrette)
Currently a user pay system

What Has HMIRA Done

by Omar Ha-Redeye on Jun 18, 2009

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