OSHA standard Trade Secrets

On March 19,1982, a new proposed standard entitled Hazard Communication, was published by OSHA in the Federal Register. It differs from the Hazard Identification standard in that it emphasizes Conununication rather then Identification. It is more performance oriented and less specific. The coverage is more limited and the evaluation less extensive. It allows for trade secrets and provides for performance-oriented education and training. In this standard only chemical manufacturers evaluate the hazards whereas in the earlier proposal all employers were required to evaluate hazards. 

This controversial standard has been in development for more than eight years. OSHA s latest draft includes provisions for container and reactor labels, area placarding, a material safety data sheet in the workplace, worker training and a provision for maintaining trade secrets. Overall this standard is performanced-based, apparently permitting many existing systems to meet OSHA requirements. 

This section discusses each of the elements of PSM in terms of OSHA compliance. The elements, which were listed in Table 1.1, are repeated below in Table 2.9. Each of the elements (with the exception of Trade Secrets) is discussed in depth in the remaining chapters of this book. Specific guidance for each of the elements with respect to the OSHA standard is provided below. Each section provides the OSHA standard, along with the nonbinding guidance that accompanies the standard. In some cases, details that are immaterial to technical compliance are omitted. 

The OSHA standard contains 14 elements. Of these, the topic of Trade Secrets is the only one that is basically nontechnical. OSHA wants to ensure that employees have access to the information that they need to carry out their job safely, regardless of Trade Secret concerns. A Trade Secret is some knowledge that is not formally patented, but that nevertheless gives companies a competitive edge. The term is defined by OSHA as follows ... 

Usually, a Trade Secret is used to protect some technique or operation that the company has developed to give itself a competitive advantage. Unlike, new technology, ideas, and techniques covered by Trade Secrets cannot be patented. OSHA recognizes that there is a potential conflict between the Workforce Involvement of the PSM standard and a company s right to protect its competitive advantages. OSHA insists that employees must have access to the information that they need to carry out their work safely. However, there are ways in which employers can protect their rights. 

When preparing the process safety standard, OSHA realized that Trade Secrets could be used by employers to prevent employees from learning information critical to the safety of the facility. Therefore, OSHA explicitly stated that Trade Secrets cannot be used as a reason for not complying with the process safety standard— which includes operating procedures. 

Many chemical components of hydraulic fracturing fluids used by fracking service companies are listed on the Material Safety Data Sheets (MSDSs) as "proprietary" or "trade secret." OSHA s 29 CFR 1910.1200 (Hazard Communication Standard) section (i) states ... 

OSHA revised the standard in 1988 to eliminate certain recordkeeping requirements and to provide additional protection for employer trade secrets and redesignated the 1910.20 section to 1910.1020 in June 1996. Today, the standard still provides employees with the basic right to know the extent of their exposure to the harmful substances they work with and any associated health effects. This knowledge, in turn, allows them to detect, treat, and help prevent occupational disease. 

Trade secret provision. OSHA has provided special consideration for chemical manufacturers or distributors who claim trade secret protection for the chemical s identity. Special provisions of the standard will then apply. However, if a need to know specific chemical identity exists for any of the following reasons, the chemical manufacturer must provide the relevant information under protection of a confidentiality agreement (470, p. 53316) to assess the hazards of the chemicals to which employees will be exposed to conduct or assess sampling techniques of the workplace atmosphere to determine employee exposure levels to conduct pre-assignment or periodic medical surveillance of exposed employees to provide medical treatment to exposed employees to select or assess appropriate personal protective equipment for exposed employees to design or assess engineering controls or other protective measures for exposed employees and to conduct studies to determine the health effects of exposure. 

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