The latest rage among state legislators has the chemical industry in an uproar. Lawmakers in state after state are telling the industry that it must spell out exactly what is in any drum or tank truck or pipeline that contains a hazardous substance. That could add tens of millions of dollars to the cost of doing business, company lobbyists say.
But despite industry opposition, six states have added such "right to know" requirements to their statute books this year alone. The list ranges from Alaska to such centers of commerce as Illinois and New Jersey. In addition Maine, Connecticut and New York this year toughened up similar laws that had gone into effect in 1980. And even cities are getting into the act: a Cincinnati disclosure requirement for chemical compounds went into effect six months ago.
And there were moves--blocked for this term--to pass similar laws in Florida, Louisiana, Texas, West Virginia, and Maryland. he topic is clearly one of the hottest in the legal arena. Organized labor is pushing hard for the legislation, and is rounding up examples of accidents and near misses that stemmed from workers not really knowing the chemical makeup of substances they encountered on the job. The tales range from the slapstick of a liquid dripping from a pipe at a DuPont plant that got on a mechanic's shoes and ate through the leather to the near-tragedy of firefighters unaware that a burning plastics factory in Rhode Island contained chlorine.
But as ready as state lawmakers have been to adopt new disclosure requirements, they have not settled on any uniform definition of just what the new rules apply to or how the disclosure is to be effected. "Today, we have examples of nonsensical conflicts in the particulars of hazard commnication requirements in our country," complains David F. Zoll, general counsel of the Chemical Manufacturers Association. "For instance, some states require container labeling while others require posting of a hazardous substance list or safety data sheets." And the formats of the data sheets vary from jurisdiction to jurisdiction. It could lead just one company, Monsanto, to have to draw up 50,000 different versions to cover all its products in all the states, a corporate lobbyist estimates.
But the complaints from the board rooms have to do with more than costs and duplications: chemical industry executives are afraid that having to list the ingredients of their products will reveal some until-now secrets that will let other companies market copy-cat products without expensive research and testing. "Any information which would assist a physician in treating an injured worker should be made available to that physician--immediately," Zoll says.
But he balks at state schemes that would allow those without an immediate need to know of secret formulations, and he includes among those without an immediate need industrial hygenists and toxicogists who may be studying work place safety.
The industry's best hope of keeping secret--and of getting one set of rules to work with from coast to coast--is in a Hazard Communications Standard that may be issued by the Occupational Safety and Health Administration before the end of this year. The standard is a reworking of one drafted by the Carter administration, but pulled back after President Reagan moved into the White House. It was that pullback that nudged most of the states into action to pass their own legislation.
Once OSHA comes out with its rules, it will be a field day for lawyers to argue over whether states with stricter statutes can continue to enforce them. As a general rule, when the federal government acts, it preempts the authority of the states. But there are enough question marks in the area of chemical hazards for aggressive state attorneys general to press their own authority. hey have a harder task in advocating another point that must be considered in getting OSHA's okay for a state variance: a need to show that the local rules are "required by compelling local conditions." A desire of a state to afford workers within its borders more protection than is given those elsewhere is not generally considered such a local condition.
Moskowitz covers legal affairs for McGraw-Hill World News.