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July 27, 2015

HCS:  OSHA Issues Inspection Procedures for Hazard Communication Standard (HCS 2012)

Bergeson & Campbell, P.C.

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). The Directive repeals previous instructions CPL 02-02-038 and CPL 02-02-039. It also cancels both enforcement memorandums effective February 9, 2015, and May 29, 2015, respectively. For more details, see OSHA Directive Number CPL 02-02-079.


On May 26, 2012, OSHA issued a final rule modifying its HCS to conform to the United Nations’ (UN) Globally Harmonized System of Classification and Labeling of Chemicals (GHS), Revision 3. In the final rule, OSHA drastically modified the process by which hazards are classified and the information 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; the deadline for all labels and SDSs to meet the new criteria was June 1, 2015. This deadline included everyone except 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 have 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 specific 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. The key point indicates “[p]recautionary statement(s), hazard statement(s) that are incorporated from GHS must be changed to mandatory language” as required in Appendix C of 29 C.F.R. § 1910.1200. If the CSHO observes differences, the CSHO “shall determine if the information contradicts or casts doubt on OSHA required information.”

The Directive in 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. One interesting note relates specifically to combustible dust. OSHA notes in a specific example a scenario where “a product forms a combustible dust when ground into a powder, and the manufacturer knows this, but the manufacturer intends its product to be melted, not ground, and it perceives that there is no hazard from combustible dust if used as intended.” OSHA states “the manufacturer must still warn downstream users of the known potential hazards from combustible dust.” This would appear to expand the general scope of HCS 2012 as covering hazardous chemicals in the workplace used under normal conditions or in a foreseeable emergency. Additional guidance on combustible dusts is found in Definitions under Section X.C.5. Additional details on certain exemptions relating to products that are regulated by the U.S. Food and Drug Administration (FDA), the U.S. Environmental Protection Agency (EPA), or the Consumer Product Safety Commission (CPSC) are provided and offer information for the CSHO to consider in determining if the exemptions apply.

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 hazards not otherwise classified (HNOC). HNOC is 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 considerable process for determination of compliance for hazard classification. The section is the most complex and discusses the process used for the CSHO, and also the manufacturer, or importer in how OSHA intends to address issues relating to classification in accordance with mandatory Appendix A and B. 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 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.” Any questions are to be further investigated by contacting the OSHA regional hazard communication coordinator who may then contact the Directorate of Standards and Guidance (DSG) or the Salt Lake Technical Center (SLTC). The chemical manufacturer or importer will need to provide detailed information, including rationale for how the classification was determined. There are several additional Appendices (A, B, C, D) providing evaluation procedures available in the Directive.

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. Non-compliance will be a relatively easy visual for the CSHO. 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-comlaint 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. The implementation of HCS 2012 involved extensive changes to the requirements for the information required within the SDS as well as the requirements for the SDS layout. The transmission requirements for the SDS did not change with HCS 2012. Chemical manufacturers and importers were to have completed development of HCS 2012 compliant SDS 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 Directive also contains extensive guidance for SDS content for Sections 1, 2, 3, 8, 9, 12-15, and 16. The requirements for SDS development for manufacturers, importers, and distributors are also included. Appendix H contains additional compliance guidance for the CSHO.

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. The section on trade secrets provides specifics on how the CSHO is to approach the validity of a trade secret claim and indicates when issues of validity are established, “the Area Office should discuss the issue with the Regional Hazard Communication Coordinator.” A point to note for the section that discusses the effective dates is the details in the citation guidance that indicates “f a CSHO finds a violation of either HCS 1994 or 2012, citations shall be issued for both HCS 1994 and HCS 2012.” Appendix E is provided for further information.

Appendix D provides the CSHO direction on how to address “Petroleum Streams,” and includes definitions, classification, and SDS disclosure discussions. The Directive offers assistance for approaches the CSHO could consider for compliance for ingredient disclosure that address the “unknown or variable concentrations” that exist within the petroleum industry. Manufacturers, importers, distributors, and employers operating within these definitions should review to determine relevance to their operations.


The Directive offers explicit guidance on exactly how the CSHO is to assess compliance with HCS 2012. The incorporation of the two previous enforcement memorandums 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 that evidences the manufacturer’s, importer’s, or distributor’s independent research resulted in no available information and, therefore, the only alternative 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.