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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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)

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

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?

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

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

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