HCS: OSHA Publishes Enforcement Guidance for the Hazard Communication Standard

On February 9, 2015, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published the “Enforcement Guidance for the Hazard Communication Standard’s (HCS) June 1, 2015 Effective Date” (Guidance). The Guidance offers important insights into OSHA’s HCS enforcement strategy and is a must read for stakeholders.

Bergeson & Campbell, P.C., The Acta Group, and 3E Company, a Verisk Analytics business, will present a complimentary webinar, Thursday, April 2, 2015, 1:00 – 2:00 p.m. (EDT), on the steps companies should take between now and June 1, 2015, to comply fully with HCS, or else to document sufficient diligence toward full compliance to avoid enforcement action. Registration details to follow.

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, for everyone except distributors who may ship products with the old labels until December 1, 2015. The enforcement Guidance provides 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.

Documented efforts, according to the Guidance, 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).

Commentary

The enforcement Guidance is a useful and relatively explicit “how to” persuade OSHA to exercise its enforcement discretion in cases where the fast-approaching June 1, 2015, HCS effective date cannot be met. Manufacturers and importers of mixtures must be in a position 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. Contemporaneous written, record evidence must be generated to make this showing to enable OSHA to exercise enforcement discretion. The key here is documentation. The supplier must demonstrate exhaustive efforts to obtain not just their upstream suppliers’ SDSs and labels, but that no alternative exists for hazard determination. Manufacturers and importers should continue to work on achieving compliance by the June 1, 2015, deadline. The Guidance provides comforting advice to regulated entities on how to minimize enforcement consequences if they are unable to procure the necessary information by the deadline. Failure to demonstrate “reasonable diligence” and “good faith efforts,” however, will likely end badly for mixture manufacturers and importers.