OSHA substantially revised the 1994 Hazard Communication Standard (HCS) in 2012 and by June 1, 2015 most employers have to be in full compliance with the new requirements. Many employers, especially those who work with chemical mixtures, are concerned about their compliance with the new requirements for container labels and Safety Data Sheets (SDS).
According to a recent Enforcement Guidance Memorandum from OSHA, these employers will not be cited provided 1) they are able to demonstrate they exercised “reasonable diligence and good faith to comply,” but were unable to obtain the required hazard information from their respective upstream suppliers in time; and 2) they have labeling and MSDS’s which are in compliance with the 1994 HCS.
In 2012, OSHA substantially revised the previous HCS to bring it into alignment with the UN's Globally Harmonized System of Classification and Labeling Chemicals (GHS). The three most important of these revisions included the adoption of uniform classification system for chemicals, GHS’ uniform container labels and a standardized format for Safety Data Sheets (SDS) (replacing Material Safety Data Sheets (MSDS)). By June 1, employers (including chemical manufacturers and importers) must be in compliance with these revisions; chemical distributors have until December 1, 2015.
According to the OSHA Enforcement Guidance Memorandum on HCS 2012, chemical manufacturers, importers and distributors that fail to timely comply with these requirements for chemical mixtures may receive an extension of time from OSHA inspectors. The Memorandum applies specifically to chemical mixtures and sets out how the Agency will enforce the major revisions in the new HCS. In order to qualify, they must demonstrate they have exercised “reasonable diligence and good faith to comply” by trying to obtain classification information and SDS's for their chemical mixtures from their upstream supplier.
Due to their respective compliance deadlines, the Memorandum addresses chemical manufacturers/importers and distributors separately.
Chemical Manufacturers and Importers
OSHA recognizes there will be situations where chemical manufacturers and importers cannot comply “due to circumstances beyond their control”; specifically, where their upstream suppliers have not provided them with the classifications and SDS information for their chemical mixtures. In these situations, OSHA’s inspectors “shall not cite” manufacturers and importers for failing to meet the June 1 deadline to update labeling and SDS, but only if they can demonstrate they “exercised reasonable diligence and good faith in attempting to obtain HCS 2012-compliant SDSs and classification information from its upstream raw material supplier(s).”
According to OSHA, demonstrating “reasonable diligence and good faith to comply” means providing documentation of an employer’s efforts to do three things:
- “Obtain classification information and SDSs from upstream suppliers;”
- “Find hazard information from alternative sources (e.g., chemical registries);” and
- “Classify the data themselves.”
OSHA stresses these efforts must include both oral and written communications with upstream suppliers. For each chemical mixture that does not comply, the Memorandum directs inspectors to consider whether the manufacturer or importer:
- “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 (e.g., 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 HCS 2012”; and
- “Developed the course of action it will follow to make the necessary changes to SDSs and labels.”
Satisfying the showing also requires the employer to provide a timeline for expected compliance with HCS 2012. With regard to timing, the Memorandum gives manufacturers and importers six months from the time it receives the hazard information from the upstream supplier to create HCS 2012-compliant SDS. Manufacturers and importers then have six months from SDS creation to create HCS 2012-compliant container labels.
Employers should use these factors as roadmap to establish “reasonable diligence and good faith” should it be unable to comply by June 1. According to the Memorandum, any combination of these factors can establish “reasonable diligent and good faith” efforts. At the end of the day, though, the decision to cite is within the inspector’s discretion.
Unlike other employers, distributors have until December 1, 2015 to comply with HCS 2012’s SDS and labeling requirements. However, in light of the dilemma described above for manufacturers and importers, distributors may consequently experience downstream delays in receiving the hazard information for chemical mixtures.
The Enforcement Guidance Memorandum therefore extends similar relief to distributors if they can also show they exercised “reasonable diligence and good faith to comply” by the December 1 deadline. As with manufacturers and importers, inspectors will determine “whether the distributor is able to document its communication with the manufacturer or importer about the circumstances for the noncompliance with HCS 2012.” The same “reasonable diligence and good faith to comply” factors for manufactures and importers will be considered for distributors.
In these limited situations, distributors will be permitted to ship chemicals with labels and MSDS’s that comply with the previous HCS until December 1, 2017.
What if an employer is further downstream from a distributor and has not yet received the HCS 2012-compliant labeling and SDS? OSHA extends similar relief in the Enforcement Guidance Memorandum. According to the Q&A Section of the Memorandum, OSHA will not cite the employer until it receives the updated labeling and SDS. While not explicitly addressed, the rationale of the Memorandum would suggest that the employer must still be in compliance with HCS 1994’s MSDS and labeling requirements to qualify.
To be clear, the deadline for compliance with HCS 2012 is not being extended; OSHA is merely providing an extension in limited circumstances where an employer fails to timely comply with the labeling and SDS requirements because it has not received the hazard information from its upstream supplier. In addition to its pre-existing efforts to confirm HCS 2012 labeling and SDS, employers should use the next month to set up procedures to document all efforts to communicate with upstream supplier (both written and oral) in accordance with the factors listed in the Memorandum. This way, if there are any unforeseen delays in acquiring the information, the employer can readily demonstrate to OSHA it should not be cited pursuant to the terms of the Memorandum.