Regulatory Developments

HCS:  OSHA Publishes Interim Enforcement Guidance for the Hazard Communication Standard

June 2, 2015

On May 29, 2015, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) published the "Interim Enforcement Guidance for Hazard Communication 2012 (HCS 2012) June 1, 2015 Effective Date" (Interim Guidance). This is a follow-up document to the February 9, 2015, "Enforcement Guidance for the Hazard Communication Standard's (HCS) June 1, 2015 Effective Date" (Enforcement Guidance). The Interim Guidance offers clarity on a few specific points to manufacturers, importers, and distributors on OSHA's HCS enforcement strategy.

Background

On May 26, 2012, OSHA issued a final rule modifying its HCS to conform to the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals (GHS), Revision 3. In the final rule, OSHA has drastically modified the process by which hazards are classified and the elements required on Material Safety Data Sheets (MSDS), now called Safety Data Sheets (SDS), as well as labels. The regulatory implementation phase is currently underway, with the deadline for all labels and SDSs to meet the new criteria by June 1, 2015. This includes everyone except distributors who may ship products with the old labels until December 1, 2015. The Enforcement Guidance as well as the Interim Guidance provide industry with specific and detailed insight regarding how OSHA intends to address compliance with respect to hazard determination for mixtures.

Key Points

The Enforcement Guidance indicates OSHA will exercise its enforcement discretion to allow for a reasonable time period for manufacturers or importers of mixtures to come into compliance, provided a demonstration of "reasonable diligence" and "good faith efforts" is thoroughly documented. The Interim Guidance indicates that "where a manufacturer or importer has not received classification information from its upstream supplier(s) on which it intends to rely for the classification of its product before June 1, 2015, the manufacturer or importer may continue use of the HCS 1994 label under certain limited circumstances."

Documented efforts, according to both guidance documents, include a demonstration that the manufacturer or supplier attempted to obtain HCS 2012-compliant SDSs and labels from their upstream suppliers, and a demonstration that no other source of information is available to make these hazard determinations without the upstream supplier-provided details. The demonstration that the supplier was unable to make a hazard determination in the absence of the upstream SDS or label must include documented evidence of an inability to obtain information from alternative sources, including utilization of alternative documentation (alternate suppliers' SDSs or labels) or utilization of information located within "the full range of available scientific literature and other evidence concerning the potential hazards," as indicated in 29 C.F.R. § 1910.1200(d)(2).

The documentation of these efforts must also include written accounts of continued dialogue with upstream suppliers, as well as continued communication to downstream users who are also potentially impacted as to the reason why HCS 2012 compliance was not achieved. OSHA is clear that once information is received, suppliers must adhere to the requirements to update SDSs and labels within the timeframes specified in 29 C.F.R. § 1910.1200(f)(11) and 29 C.F.R § 1910.1200(g)(5). The Interim Guidance indicates that in limited situations, the manufacturers and importers must create HCS 2012-compliant labels within six months after they develop the updated SDS. All efforts of actions taken will be considered by OSHA, and no citation will be issued when it is determined that reasonable efforts were applied.

The Interim Guidance offers some labeling relief to those operations where manufacturing of their product occurred prior to June 1, 2015, and inventory was stocked (i.e., boxed, palletized, shrink-wrapped, etc.). The Interim Guidance indicates that "there is no requirement to re-label packaged for shipment containers with HCS 2012-complaints labels." Labels must be provided for individual shipped containers, unless the previously described documentation applies (reasonable diligence and good faith efforts).

Distributors should consult OSHA definitions carefully before assuming the December 1, 2015, labeling deadline applies. Distribution operations, according to OSHA, do not include repackaging, blending, or mixing hazardous chemicals. Those that meet the OSHA definition of a distributor are not required to re-label existing stock packaged before December 1, 2015, as long as HCS 1994-compliant labels remain intact. HCS 2012 labels and SDSs must be provided on shipped containers after December 1, 2015, unless the previously described documentation applies (reasonable diligence and good faith efforts).

The Interim Guidance document indicates "all containers in the control of a distributor after December 1, 2017, must be HCS 2012-compliant labeled prior to shipping."

Commentary

The Enforcement Guidance and the latest Interim Guidance offer relatively explicit "how to" guidance in persuading OSHA to exercise its enforcement discretion in cases where the June 1, 2015, HCS effective date was not met. Manufacturers, importers, and distributors of mixtures must position themselves to demonstrate proper due diligence in seeking information for the purposes of classification and labeling. This documentation must demonstrate that their research resulted in no available information and, therefore, the only alternative was to wait for updated SDSs and labels from their suppliers. These are not light burdens and documentation is critical.

Manufacturers and importers should continue to work to demonstrate compliance. Both guidance documents provide comforting advice to regulated entities on how to minimize enforcement consequences if they were unable to procure timely the necessary information. Clarification on re-labeling is a major relief to industry. OSHA definitions of "container" should be carefully considered prior to labeling activities. OSHA has provided several letters of interpretation on container labeling; this Interim Guidance is the first to indicate the allowance for continued use of HCS 1994 labels on products packaged prior to June 1, 2015.

OSHA indicates, at the end of the Interim Guidance, that "ssuance of the revised HCS 2012 directive will cancel" both of the guidance documents, which is anticipated shortly.


 
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