New Compliance

On July 20, 2015, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued OSHA Directive Number CPL 02-02-079. The Directive is intended to establish “policies and procedures to ensure uniform enforcement of the Hazard Communication standard” (HCS 2012). Highlights are noted below.

Background

On May 26, 2012, OSHA amended its HCS to conform to the United Nations’ (UN) Globally Harmonized System of Classification and Labeling of Chemicals (GHS), Revision 3. The amendments modified the process by which hazards are classified, and the information elements required on Material Safety Data Sheets (SDS) and labels. The deadline for all labels and SDSs to meet the new criteria was June 1, 2015 (excluding distributors, who may ship products with the old labels until December 1, 2015).

Under HCS 2012, employees must update their written hazard communication programs and provide additional employee training for newly-identified hazards by June 1, 2016. The Directive outlines the procedures to determine if a violation is occurring. The Directive notes “[a]ll manufacturers, importers, distributors and employers must be in full compliance with HCS 2012 no later than June 1, 2015, except where noted in 1910.1200(j)(2). Where a manufacturer, importer, or distributor has exercised ‘reasonable diligence’ and ‘good faith’ to obtain HCS 2012-compliant SDSs from upstream suppliers but have not received them, they will be allowed limited continued use of HCS 1994-compliant MSDSs and labels.”

Key Points

The Directive outlines in Section X the inspection guidelines that apply, including citation guidance for the Compliance Safety and Health Officer (CSHO). Section X.A. General Inspection Guidance provides examples of issues that would be considered violative and non-violative of the HCS 2012. Included in these examples is a discussion on the variances between UN GHS Revision 3, UN GHS Revision 4, and the HCS 2012 adaptation.

Section X.B. provides information on the HCS 2012 scope, including intended use, byproducts, substances “known to be present,” and exemptions. The examples and detailed descriptions along with the citation guidelines provide insight into the types of questions and documented information OSHA considers for the overall applicability of the HCS 2012.

Section X.C. provides additional clarification and guidance on the HCS 2012 definitions. The section is not citable but is provided to assist CSHOs, as definitions in many cases are substantially different from the previous standard. Of note are the examples provided for hazard not otherwise classified (HNOC), a term introduced with HCS 2012 that is not part of the UN GHS model. Definitions for container, distributor, importer, manufacturer, and responsible party also contain specific examples that provide additional guidance to not only the CSHO, but impacted parties as well.

Section X.D. outlines the process for determination of compliance for hazard classification. These are the most substantial changes to the HCS and the information in Section X.D. should be consulted. OSHA states it does “not classify nor approve of classifications of chemicals for manufacturers, importers and distributors.”  Inspection guidance indicates “[t]he adequacy of a company’s hazard classification should be assessed primarily by examining the outcome of that classification, i.e., the accuracy and adequacy of the information on labels and SDSs and, if available, by reviewing the manufacturer’s or importer’s hazard classification procedures and calculations.”

Section X.E. provides details on the written hazard communication program. From a historical perspective, this area is one of the most commonly cited by OSHA. Employers should carefully review these elements and examples, including citation guidelines, to ensure compliance.

Section X.F. describes the labeling requirements. HCS 2012 labeling requirements are substantially different from the previous 1994 standard. The OSHA Enforcement memorandum of May 29, 2015, provided additional guidance for relabeling and workplace labeling. The Directive maintains the “limited” use of 1994 compliant labels with a demonstration of “reasonable diligence” and “good faith efforts.”  The context for what is meant by those terms is found within the Directive, and the CSHO is to decide if those efforts and actions are to result in no citation. The Directive also maintains “[m]anufacturers or importers of hazardous chemicals (including businesses that repackage) that have existing stock packaged (e.g., boxed, palletized, shrink-wrapped, etc.) for shipment prior to June 1, 2105, that are HCS 1994-compliant labeled, may continue to ship those containers downstream. . . . The manufacturer or importer must provide HCS 2012-compliant labels for each and every individual container shipped and the appropriate HCS 2012-complaint SDS(s) with each shipment. . . .”  It will be important to demonstrate the “prior to June 1” aspect of this to the CSHO. This section also provides guidance on addressing alternative labeling (i.e., National Fire Protection Association (NFPA) and Hazardous Materials Information System (HMIS)) and approaches for labeling specific package types (i.e., stationary containers, Department of Transportation (DOT) tanker trucks and railroad tank cars, portable containers, and small containers).

Section X.G. outlines the requirements for SDSs. Chemical manufacturers and importers were to have completed development of HCS 2012-compliant SDSs by June 1, 2015. Similar to the label discussion above, limited circumstances may allow the CSHO to exercise enforcement discretion, in the event an HCS 2012 SDS is not available, when “reasonable diligence and good faith efforts” indicate development was not possible due to the inability to obtain upstream SDS and/or hazard information. The Directive notes “[a]ny party who changes the SDS (for example, changing the name or identity of the chemical) becomes responsible for the SDS…regardless of whether it is a chemical manufacturer, importer, distributor or employer.”

The remaining parts of Section X address employee information and training (Section X.H), trade secrets (Section X.I.), and effective dates (Section X.J.). Employee information and training includes issues the CSHO should focus on to ensure compliance is established. 

Commentary

The Directive offers explicit guidance on how the CSHO is to assess compliance with HCS 2012. The incorporation of the two previous enforcement memoranda reflects OSHA’s renewed efforts to offer industry limited relief in the event HCS 2012 compliance has not been accomplished and requires manufacturers, importers, and distributors to demonstrate due diligence in seeking information for the purposes of classification, SDS development, and labeling. 

The “reasonable diligence” and “good faith effort” discussion in the Directive demonstrates the critical need for documentation evidencing the manufacturer’s, importer’s, or distributor’s independent research that resulted in no available information. The only alternative, therefore, was to wait for updated SDSs and labels from their suppliers. Compliance in these limited situations must continue to conform to the HCS 1994 standard, and it is left to the discretion of the CSHO to determine if a citation will be issued. 

Check out our latest Edition!

 

staci blog mt2

Contact Us

Manufacturing Today Magazine
150 N. Michigan Ave., Suite 900
Chicago, IL 60601

  312.676.1100
  312.676.1101

Click here for a full list of contacts.

Latest Edition

Spread The Love

Testimonials

"The article Manufacturing Today wrote about us was spot-on. It was a pleasure working with them from interview to published article and everything was as promised.” – Jennifer Brozek, inside sales, Koyo Machinery USA Inc.

Click here for more testimonials.

Back To Top