OSHA Clarifies Several Aspects Of Hazcom Enforcement, But Policy Details Draw Concern

Stakeholders and hazcom experts began picking apart the field guidance this week after OSHA issued the policy on Monday, identifying several areas of additional detail that stand out: requirements for documentation of good-faith compliance efforts; written hazcom program instructions; and procedures for classifying chemicals, to name a few.

Knowledgeable sources say some components of the field instruction, because of their specificity, are fraught with the potential for citations against employers under the 2012 rule, which was designed to bring U.S. hazcom requirements in line with the United-Nations-devised Globally Harmonized System of classifying and labeling chemicals. For example, one source says documentation requirements explained in the instruction effectively put in place requirements that many employers may have inadvertently neglected over time.

OSHA says significant parts of the instruction, which cancels several older policies, include:

• Implementing the rule’s changes in “hazard determination” to the specific requirements for hazard classification of chemicals, standardizing of label elements for containers of hazardous chemicals, and specifying the format and required content for safety data sheets (SDS).
• Covering how the revised standard is enforced during its transition period and after the standard is fully implemented.
• Requiring evaluation of chemicals in accordance with specific guidance outlined in Appendices A and B of the standard, with hazard classification resulting in the specification of pictograms, signal word, hazard statements, and precautionary statements that must be included on the labels.

One industry attorney tells Inside OSHA Online the detailed written program compliance to be sought by inspectors presents a substantial paperwork burden not clearly specified in the standard. The attorney also argues that a section on demonstration of good faith and the documentation required thereof presents similar problems. “There’s a lot more detail on what they mean by documenting good-faith efforts that wasn’t contemplated by anyone when they wrote the standard, and it’s going to be a lot more expensive … [also] it’s a little late to be talking about having this kind of documentation.”

“The written program instructions are far more detailed than what is in the standard,” the lawyer says. “I don’t see how anybody with a straight face at OSHA came up with the costs that they have.” The source predicts that eventually citations will come down that are based on some of the specifics within the enforcement policy, “but it will take a while I think to get there.”

The agency sets out numerous requirements compliance officers should evaluate in employers’ written hazcom programs to determine compliance.

Inspection guidelines say inspectors must review the written program to ascertain whether all applicable requirements of the standard’s paragraph (e), (f), (g), and (h) are covered in the written program and have been implemented in the workplace. The written program must address chemical inventory, which must have a product identifier for each chemical known to be present that aligns with the SDS and label, and which can be for the entire facility or for individual work areas. The inventory must include all chemicals present (even if the chemicals are stored/not in use).

The program must cover the methods the employer will use to inform employees of the hazards in non-routine tasks, and the hazards associated with chemicals contained in unlabeled pipes in their work areas, OSHA says.

Programs for multi-employer work sites must include method(s) to provide the other employers on-site access to SDS for each hazardous chemical the other employer(s)’ employees may be exposed; method(s) to inform other employers about any necessary precautionary measures to protect employees; and how to inform other employer(s) about the labeling system used.

The written program must address its own availability to employees, employee representatives, NIOSH and OSHA representatives upon request. The guidance further requires inspectors to ensure that programs address labels and other forms of warning, which must include designation of the person(s) responsible for labeling on shipped containers; designation of the person(s) responsible for workplace labeling; description of labeling system(s) used; description of alternative to labeling for workplace containers, where applicable; and procedures to review and update label information when necessary (for employer’s workplace labeling and for shipped container labels).

Written programs, according to the guidance, must include designation of the person(s) responsible for obtaining/maintaining the SDS; how the data sheets are to be maintained; procedures on how to retrieve SDS electronically, including backup systems to be used in the event of failure of the electronic equipment, and how employees obtain access to the SDS. The programs must address procedures to follow if the SDS is not received at the time of the first shipment; if it is suspected that the SDS is not appropriate (e.g., missing hazards); to determine if the SDS is current; and for chemical manufacturers or importers, procedures for updating the SDS when new and significant health information are found.

Programs must also address designation of the person responsible for conducting the training; how the training is to be conducted (e.g., written, visual presentation using slides, verbal); the required elements of the training program.; the the duties in (h)(1) through (h)(3); procedures to train new employees at the time of their initial assignment and to train employees when a new hazard is introduced into the workplace; and procedures to train employees when they are potentially exposed to chemicals used by other employers on multi-employer work sites.

An industry attorney tells Inside OSHA Online that in addition to new burdens potentially imposed by the detailed enforcement policies, OSHA’s instruction also wades into areas that clearly reflect current enforcement priorities not tied directly to ensuring compliance with the new hazcom standard. A key example is language in the document covering temporary workers, a broad area that is an increasing enforcement emphasis for OSHA.

“They are clearly encompassing their enforcement initiatives into this directive,” says the attorney, Tressi Cordaro, shareholder in Jackson Lewis. Enforcing requirements on staffing companies to train employees on protecting themselves from chemical hazards they could encounter at the host employer site is an obvious example of OSHA pushing its policy agenda through enforcement of a standard without a legal basis in the standard and statute, the attorney contends, and also circumvents the regulatory process normally required of OSHA. “That is rulemaking without notice and comment.”

One occupational safety and health expert tells Inside OSHA Online, however, that it appears OSHA is justified in wrapping issues such as multi-employer sites and staffing firm employee training into hazcom enforcement, because those are central concerns for thorough and uniform implementation of the rule.

The enforcement guidance appears to make several specific concerns clearer for compliance officers and, in turn, easier for employers in affected industries to comply.

Cordaro notes that OSHA did provide useful clarification on some issues, such as employer reliance on Department of Transportation labeling for shipping of hazardous chemicals. “There’s some value in this directive. OSHA gave some clarification to DOT labeling,” she says. “That’s guidance that was needed in the industry.” — Christopher Cole ()