Year after year, Occupational Safety and Health Administration (OSHA) has cited employers more often for alleged violations of its 1986 Hazard Communication Standard, 29 C.F.R. §1910.1200 (HCS), than just about any other of its safety or health standards. In FY 2011, in fact, the HCS was the most frequently-cited standard in General Industry. And last year was not the first year in which that was the case.
Since at least 2005, however, OSHA has been under intense pressure by a multitude of constituents to conform the HCS to the United Nations’ (UN’s) Global Harmonization System (GHS). The UN adopted the GHS in 2003 as an international model for chemical hazard classification, hazardous chemical labeling, and safety data sheet (SDS) formatting. Since then, the GHS has been modified and was finally rolled out recently for worldwide implementation. Sixty-seven countries are in the process of considering it for adoption in some form or another.
The GHS is not a wholesale substitute for the HCS. Some GHS provisions are not occupational safety and health-related. They relate, instead, to consumer products and environmental hazards outside the reach of the Occupational Safety and Health Act and OSHA. But many GHS provisions are occupational safety and health-related, and OSHA now has adopted them as amendments of the HCS. OSHA’s final rule announcing the amendments was published on March 26, 2012.
The original HCS requires chemical manufacturers and importers to evaluate their chemicals for hazards, to prepare material safety data sheets (MSDSs) that include hazard and related information on those chemicals that are hazardous, and to label containers of those chemicals in order to communicate the chemicals’ hazards to downstream users. Employers who are downstream users then must implement written hazard communication programs (HCPs) that include, among other things, chemical inventory lists, copies of MSDSs received from the chemical manufacturers/importers and distributors, provision for employee training, and procedures for dealing with contractors who bring employees or chemicals of their own on the worksite.
OSHA’s stated goal in amending the HCS to conform better to the GHS is not necessarily to change what employers must do under the original HCS, but to promote better consistency of practice throughout the country and even between businesses in the United States and in other countries. OSHA estimates, though such estimates are often “best case scenarios,” if not hyperbolic, that the HCS amendments will prevent 43 work-related fatalities and 521 industrial injuries and illnesses every year through improved knowledge and better identification of chemicals and their hazards in the workplace. Time will tell.
The original HCS allows chemical manufacturers and importers a lot of flexibility in the way they communicate hazard information on MSDSs and labels. The revised HCS, by contrast, applies strict hazard classification, labeling and SDS formatting requirements to help insure uniformity. Under the new rule, every hazardous chemical will have to be assigned to one or more of several specific physical or health hazard “classes” and, potentially, one or more hazard “categories” within the hazard class that describes the nature of the physical health hazard posed by the chemical - for example, explosive, flammable solid (or liquid), irritant, corrosive, carcinogen, and the like.
Hazardous chemical labels will have to include standard elements: (1) a signal word, either “Danger” or “Warning”; (2) a hazard statement that describes the nature of the danger posed by the chemical; (3) one or more of eight different standardized symbols or pictograms that communicate the nature of the hazard; and (4) a description of measures that are manufacturer-recommended for the prevention or minimization of the adverse affects of exposure. All labels will have to be bordered in red to set them off and bring them to users’ attention. For example:
The revised HCS, consistent with the GHS, also prescribes a particular format for SDSs, which are called MSDSs under the original HCS. All SDSs will have to be formatted into 12 of the 16 sections prescribed by the GHS, in a particular order, first communicating the information most generally needed by a chemical user or an emergency responder and only later more specific or technical information. The order is:
- Identification of the substance or mixture and of the supplier
- Hazards identification
- Composition/information on ingredients Substance/Mixture
- First aid measures
- Firefighting measures
- Accidental release measures
- Handling and storage
- Exposure controls/personal protection.
- Physical and chemical properties
- Stability and reactivity
- Ecological information (non mandatory)
- Disposal considerations (non mandatory)
- Transport information (non mandatory)
- Regulatory information (non mandatory)
- Other information including information on preparation and revision of the SDS
The primary purpose of the reformatting is standardization. But OSHA also wants to insure, as best it can, that appropriate treatment is gotten to exposed workers as promptly as possible after exposure.
Interestingly, the GHS does not address the issue of employee (or other) training. OSHA has included as part of the new rule; however, a mandate that employees be trained on the revised HCS as a part of the employer’s implementation of its revised HCP.
The deadlines for implementation of the revised HCS’s requirements are stepped. Full compliance will not be required of employers until June 1, 2016. But the following interim and ultimate deadlines apply both to chemical manufacturers and importers and to employers:
- All employee training on new labeling requirements and SDS formats must be conducted no later than December 1, 2013.
- New and compliant labels and SDSs must be in use no later than June 1, 2015, though distributors (versus manufacturers or importers) of hazardous chemicals have six more months, until December 1, 2015, to comply.
- Updated HCPs and signs must be in place in every workplace no later than June 1, 2016.
The revised HCS impacts chemical manufacturers and importers more heavily than it does employers subject to the original HCS. Manufacturers and importers will be required to reevaluate chemicals under the HCS’s new criteria, classify them appropriately, categorize them appropriately (if appropriate), amend their MSDSs to comply with the SDS format requirements, and label the chemicals’ containers consistent with the revised HCS’s provisions. Employers then will have to deal with those SDSs and labels as under the original HCS.
Employers should press their chemical suppliers now and ongoing to supply new SDSs as soon as possible, and employers should either get from their suppliers or produce for themselves compliant labels as soon as possible. Those employers also need to gear up so that they are able to complete employee training on the new SDS and labeling format no later than December 1, 2013. Employers will have until June 1, 2016, to update their HCPs and workplace signs. Written HCPs will need to be modified only to the extent they address label and SDS formats, warnings, pictograms, and the like and require updated chemical inventory lists.
Employers would be wise not to delay getting up to speed on the revised HCS and putting in place a plan for timely compliance. One thing about enforcement of the revised HCS we know will not change is that OSHA compliance officers will continue to seek out violations as an important part of their workplace inspections. In addition, of course, new standards always rise to the top of compliance officers’ awareness. So we are highly unlikely to see the HCS, old or new, drop from OSHA’s “top 10” anytime soon. Forewarned is forearmed.© MICHAEL BEST & FRIEDRICH LLP
About the Author