March 20, 2015

OSHA Offers Good-Faith Employers Leeway On June 1 Hazcom Deadline

OSHA is offering some enforcement leeway for companies that show good-faith efforts to meet an upcoming June 1 deadline for updating safety data sheets (SDS) and labeling mixtures of chemicals with known hazards under a 2012 worker right-to-know standard, though some in industry believe the agency’s new compliance directive demonstrates that industry should have challenged the rule as infeasible when it came out three years ago.

The development comes as OSHA separately contemplates moving forward on a yet another new hazard communication (HCS or hazcom) standard to keep the U.S. system up to date with the evolving United Nations-devised Globally Harmonized System (GHS) of classifying and labeling chemicals.

OSHA’s February enforcement directive guides compliance officers in dealing with situations in which employers are striving to meet the upcoming deadline but cannot feasibly do so because of circumstances outside their control, mainly the timing of upstream suppliers providing the information needed for updating the data sheets. June 1 is the date by which chemical manufacturers, importers, distributors and employers must be in compliance with all modified provisions of hazcom, other than two exceptions for distributors and employers, OSHA notes.

The new guidance applies only to compliance inspections of chemical manufacturers, importers, and distributors in their classification of hazardous chemicals and development of SDS and labels for chemical mixtures under the rule. It allows an extension of three to six months for employers found to be acting in good faith to comply with the SDS requirement based upon new information received from suppliers.

OSHA lays out an enforcement position for employers, including product formulators, that have exercised “reasonable diligence” and “good faith” to classify their chemical mixtures according to the 2012 rule and consequently develop HCS 2012-compliant SDS and labels.

Manufacturers and importers, in classifying mixtures, are permitted to rely on information provided on each SDS of the individual ingredients or components from the upstream supplier, except where the chemical manufacturer or importer knows, or in the exercise of reasonable diligence should know, that the SDS misstates or omits required information, OSHA notes, citing the regulatory text.

But compliance officers, for inspections after the June 1 compliance date that involve a mixture that does not have a hazcom 2012-compliant label or SDS and in cases where the manufacturer or importer says it was unable to comply with the June 1 deadline, must determine if the employer has exercised reasonable diligence and good faith to comply with the terms of the standard. The policy only applies where the mixture’s material safety data sheet (MSDS) and label comply with the old hazcom standard issued in 1994.

OSHA says when necessary it will exercise its enforcement discretion to allow for a “reasonable time period” for manufacturers or importers to come into compliance. But on or after June 2, upstream raw material suppliers that do not have a hazcom 2012-compliant SDS or label available for downstream manufacturers or product formulators of mixtures will not be in compliance.

Upstream raw material suppliers must provide HCS 2012-compliant SDSs to downstream manufacturers or importers with the first shipment and after an SDS is updated. “If a downstream manufacturer or importer requests an updated SDS prior to receiving a new shipment, the upstream supplier must provide it immediately,” OSHA states. The agency says if it becomes aware of a manufacturer or importer requesting but not receiving a revised SDS from an upstream raw material supplier, the matter “shall be referred for further enforcement action” to the area office with jurisdiction over the employer and a citation will be considered.

OSHA describes “reasonable diligence” and “good faith efforts,” as, when requested by a compliance officer, documentation of “substantive efforts” to:

• Obtain classification information and SDSs from upstream suppliers.
• Find hazard information from alternative sources (e.g. chemical registries).
• Classify the data themselves.

Establishing reasonable diligence and good-faith effort, according to OSHA, requires that the manufacturer or importer show it has tried to obtain the SDS through direct oral and written communication with the upstream supplier.

OSHA says in situations where a mixture is shipped by a manufacturer or importer after June 1 that does not comply with the latest hazcom requirements, the compliance officer will consider whether the employer:

• Developed and documented the process used to gather the necessary classification information from its upstream suppliers and the status of such efforts.
• Developed and documented efforts to find hazard information from alternative sources like chemical registries.
• Provided a written account of continued dialogue with its upstream suppliers, including dated copies of all relevant written communication with its upstream suppliers.
• Provided a written account of continued dialogue with its distributors, including dated copies of all relevant written communication with its distributors informing them why it has been unable to comply with hazcom.
• Developed the course of action to change to SDS and labels.

Any combination of these efforts may, depending on the circumstance, be consistent with reasonable diligence and good-faith efforts, though the compliance officer must consider all of the factors. OSHA says the inspector must consider whether the manufacturer or importer attempted to obtain the hazard information in a timely manner.

Compliance officers will consider on a case-by-case basis distributor efforts to comply with the rule’s Dec. 1 deadline for shipping with updated labels.There may be distributors that, due to a manufacturer or importer not being able to comply with the June 1 effective date despite its own efforts, are consequently unable to comply with the Dec. 1 compliance date, OSHA notes, adding that the inspector will determine whether a distributor exercised reasonable diligence and good faith to comply with the deadline. “In making such determination, a CSHO shall consider whether the distributor is able to document its communication with the manufacturer or importer about the circumstances for the noncompliance” with the rule, OSHA states.

Some in industry view the policy as demonstrating what OSHA should have done differently in the rulemaking, not later on through an enforcement directive. The U.S. agency’s approach contrasted with the European Union’s that far preceded the OSHA rulemaking, because the EU countries decided to tackle substances first, then mixtures several years later, instead of all at once as OSHA did with the June 1 deadline.

The EU had the Dangerous Substances Directive and the Dangerous Preparations Directive in place many years before adopting the Classification, Labelling and Packaging regulation, and those directives contained 85 percent of what was in the GHS, according to Larry Halprin, partner in Keller and Heckman, who has worked extensively on hazcom issues. “Therefore, in proceeding with HCS 2012, we essentially adopted the EU chemical hazard communication system plus a modified version of the pictograms already used in the transport sector,” he tells Inside OSHA Online.

“The collective determination of the EU, consisting of approximately 30 (plus) sovereign countries, was that, despite its enormous head start over the U.S. in implementing the GHS, it was essential to first phase in the classification/labeling/SDS for substances for several years and then phase in the classification/labeling/SDS for mixtures,” he says. “Inexplicably, OSHA asserted that it knew better and mandated a single deadline, which it now recognizes to be infeasible and the source of tremendous confusion and uncertainty.”

Such infeasibility could have formed the basis for a challenge to the rulemaking, Halprin suggests.

The rule at Section 1910.1200(g) provides an employer with three months to update the SDS from the time it receives significant new chemical hazard information, he notes. “While OSHA failed to explicitly address this question until it issued the February 9 memo, I believe the only logical interpretation of HCS 2012 is to treat the receipt of the initial HCS 2012-compliant SDS from the supplier as the type of new info that would trigger the three-month SDS update period rather than requiring the downstream formulator to provide an HCS 2012–compliant SDS for its formulation to its customers on June 1, 2015. Therefore, conditioning the application of this three-month period to receipt of the initial HCS 2012-compliant SDS, based on a demonstration of good faith, seems to be an attempt by OSHA to amend the HCS without rulemaking.”

Halprin says conditioning an extension of the period, from three to six months, on the good faith of the formulator probably falls within OSHA’s discretion, but again says that this suggests “compliance with the standard is generally infeasible for all formulators and this point should have been raised by formulators by filing a petition for review during the 59 days after the standard was adopted.” — Christopher Cole ()