What Haz the New HMIRA Done, and Why Does it Mat?Omar Ha-RedeyeAAS, 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 Amendments1. reduces administrative burden for documentation

• label applications as confidential• commission only review applications if challenged on

the basis of confidentiality

2. 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

3. 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 Future1. efficient client service delivery

2. management excellence

3. modernized legislation

4. 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