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Proposals to Amend the Hazardous Substance Regulations under the Occupational Health and Safety Act

Occupational Exposure Limits (OELs) restrict the amount and duration of worker exposure to hazardous workplace substances such as asbestos, benzene and lead.

Consultation on the annual revised limits recommended by the American Conference of Governmental Industrial Hygienists (ACGIH) is the foundation of the Ministry of Labour (MOL)'s OEL update process and will continue to form the basis for the MOL's consultations in the future. Through this process, the MOL has successfully updated OEL for over 200 hazardous substances since 2004.

This year, in addition to revising the OEL for a number of substances as part of its tenth OEL consultation under its OEL update process, the MOL is proposing two initiatives to expedite the process of adopting more protective OEL for a number of substances, currently regulated under Regulation 833 (Control of Exposure to Biological or Chemical Agents) and O. Reg. 490/09 (Designated Substances) under the Occupational Health and Safety Act (OHSA), where implementation challenges are raised by stakeholders during the OEL consultations.

Details on these proposals are given below.

Proposed OEL Changes

The table posted on the MOL's website contains new or revised OEL or listings proposed for 11 substances resulting from changes recently recommended by the ACGIH for 2013. Stakeholders wanting to learn about the ACGIH, their "Notice of Intended Changes (NIC)" and opportunities to comment can visit www.acgih.org/TLV/NIC.htm.

Important changes proposed based on the recommendations of the ACGIH include the following:

  • Addition of 2 substances to regulation: Diethylene glycol monobutyl ether and
    N,N-Diethylhydroxylamine;
  • Revisions to exposure limits or listings for 9 substances currently regulated;
  • Withdrawal of the listing and specific exposure limit for aliphatic hydrocarbon gases, alkane [C1–C4], except butane, all isomers. Exposure to these substances will be as per the approach set out in Appendix F of the ACGIH handbook that addresses minimal oxygen content.

In addition to the changes noted above, the MOL is also proposing to revise the listing for the substance ethyl methacrylate found in the Ontario Table based on the ACGIH limits for the substance methyl methacrylate which has similar toxicological properties.

NEW – Initiatives to Expedite Adoption of New or Revised OEL

In order to expedite the adoption of more protective OEL for certain substances under review, including the OEL for wood dust, silica, beryllium, sulfur dioxide and hydrogen sulfide proposed in earlier OEL consultations, the MOL is seeking stakeholder input on the following proposals:

  1. Changes to the hazardous substance regulations (Regulation 833 and O. Reg. 490/09) that would allow for the use of personal protective equipment (PPE) to protect workers from exposure levels that are between the former OEL and the new OEL for a set time period ("transition period") to give industries the extra time they may need to phase in engineering controls to achieve the new OEL.
  2. Consideration to, and adoption of, OEL that protect the general worker population where the proposed ACGIH recommended limit for that substance includes the protection of sensitive subpopulations.

An overview of each of these initiatives is given below.

Transition Period Regulatory Proposal

The MOL is seeking input on a proposal to amend the hazardous substance regulations under the Occupational Health and Safety Act to provide for a transition period allowing for the use of personal protective equipment to protect workers from exposure levels that are between the new OEL, adopted through the Ministry's OEL update process, and the former OEL, while engineering controls are being developed.

Regulation 833 generally prohibits employers from requiring or allowing workers to wear and use PPE to protect the workers from exposure to hazardous substances unless certain specified circumstances apply (e.g. engineering controls required by the Regulation are not in existence).

The proposed amendments would provide for an additional exception to the general prohibition against using PPE to protect workers for a specific period of time ("the transition period") to allow workplaces using certain substances to use PPE to protect workers from exposure levels that are between the new OEL, adopted through the Ministry's OEL update process, and the former OEL, while engineering controls are being developed/implemented.

Amendments to both Regulation 833 and O. Reg. 490/09 would be required to provide for a transition period. Specifically, the proposed amendment would provide an additional exception to the general prohibition against the use of PPE to protect workers from exposure to a particular substance where that substance is listed in a schedule to the regulation.

As part of the regular OEL consultation process, stakeholders would be able to make submissions requesting a transition period for a particular substance. The Ministry would consider a number of factors when assessing whether it will recommend that a substance be subject to a transition period. If granted, all workplaces using this substance would be eligible for the transition period.

The factors under consideration would include:

  • Nature and extent of current exposure(s) to substance.
  • Magnitude of change in OEL.
  • The gap between the existing exposure levels and the proposed OEL.
  • Number of stakeholders from a sector that submit a submission as it may indicate if alternatives are available to the stakeholder.
  • Substantiated information relating to the costs of implementing engineering controls immediately (Note: it is understood that stakeholders will not know exact costs, but it is expected that a reasonable attempt to cost out controls be made to support the submission).
  • Other implementation considerations (obtaining permits, new technology coming on board, etc.).
  • Number of previous submissions from stakeholder for a substance to qualify for the extended timeframe to implement engineering controls.
  • Length of time needed to fully comply with requirements for engineering controls.

It is proposed that these factors would be posted on Ministry's OEL web page for transparency.

Generally, the transition period would be for specific substances where stakeholders face significant challenges implementing engineering controls following the adoption of a new or revised OEL for that substance. This would mean that Ontario could move forward and adopt new or revised OEL for such substances, thus better protecting workers and providing implementation flexibility to employers.

OEL for General Worker Populations

The MOL is also seeking input on a proposal to consider and adopt, without further formal consultation, the following approach:

Where the ACGIH recommends a limit for a substance that protects nearly all workers including those that are sensitive, such as asthmatics, and its adoption poses implementation challenges for employers, the MOL may recommend the adoption of a new or revised OEL that protects the general worker population.

In these circumstances, in setting such OEL, the Ministry may consider scientific documentation from the ACGIH or other recognized bodies such as the European Union's Scientific Committee on Occupational Exposure Limits.

This approach allows for adoption of more protective OEL for all workers while recognizing the challenges faced by many stakeholders in implementing engineering controls.

The finalization of the Ministry's 2009 proposal to establish more protective OEL for sulfur dioxide exemplifies where this approach could be used by the Ministry to address stakeholder concerns and expedite the adoption of more protective OEL. During the Ministry's 2009 OEL consultation, stakeholders expressed concern about the implementation challenges brought about by the adoption of the proposed sulfur dioxide OEL that were intended to protect workers beyond the general worker population. In such cases, under this approach the Ministry could review scientific documentation from recognized scientific bodies, including the ACGIH, to consider and adopt other OEL as may be appropriate. In the case of sulfur dioxide, the limits for the general worker population recommended by the European Union's Scientific Committee on Occupational Exposure Limits would be given consideration by the Ministry.

Additional Matters for Consideration and Comment

Where an OEL for a hazardous substance has not been recommended and is not under consideration by the ACGIH at this time, stakeholders are invited during this consultation period to nominate the substance for development of an OEL. The submission should include a proposed limit and supporting documentation.

How to participate

Stakeholder input is an essential part of the updating the hazardous substances regulations under the Occupational Health and Safety Act. Stakeholders are invited to submit comments on any or all of the proposed changes. Specific concerns should contain a clear description of the rationale and supporting documentation.

The consultation period ends May 20, 2014. Submissions may be mailed, faxed, or sent electronically to the following addresses:

Mail: Hazardous Substance Regulations Review Project
Ontario Ministry of Labour
12th Floor, 400 University Avenue
Toronto, ON M7A 1T7
Facsimile: (416) 326-7650
E-mail: oelupdateproject@ontario.ca

Notice to Consultation Participants

Submissions and comments provided to the Ministry of Labour are part of a public consultation process to solicit views on proposed revisions to Regulation 833 and O. Reg. 490/09. This process may involve the Ministry publishing or posting to the internet your submissions, comments, or summaries of them. In addition, the Ministry may also disclose your submissions, comments, or summaries of them, to other parties during and after the consultation period.

Therefore, you should not include the names of other parties (such as the names of employers or other employees) or any other information by which other parties could be identified in your submission.

Further, if you, as an individual, do not want your identity to be made public, you should not include your name or any other information by which you could be identified in the main body of the submission. If you do decide to identify yourself in the body of the submission this information may be released with published material or made available to the public. However, your name and contact information provided outside of the body of the submission, such as found in a cover letter, will not be disclosed by the Ministry unless required by law. An individual who provides a submission or comments and indicates an affiliation with an organization will be considered a representative of that organization and his or her identity may be disclosed.

Personal information collected during this consultation is under the authority of the Occupational Health and Safety Act and is in compliance with section 38 (2) of the Freedom of Information and Protection of Privacy Act.

If you have any questions regarding privacy matters, you may contact the Ministry's Freedom of Information and Privacy Office at 416-326-7786.