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OSHA Issues Second Enforcement Guidance Document on 2012 HCS

On May 29, 2015, the federal Occupational Safety and Health Administration (OSHA) issued interim enforcement guidance on the new Hazard Communication Standard (HCS) requirements, which became effective June 1, 2015, for labels and Safety Data Sheets (SDSs). Supplementing OSHA’s February 2015 enforcement guidance, this guidance document provides OSHA inspectors with discretion to refrain from issuing citations to manufacturers, importers and distributors of chemical mixtures who cannot meet the June 1, 2015 deadline, if specified circumstances exist.  (See GLO’s previous post on the February guidance document.)  The May 2015 guidance also clarifies SDS and labeling obligations for existing stock that is packaged for shipment before June 1, 2015. These two guidance documents will remain in effect as interim guidance until OSHA publishes a formal enforcement directive, which may occur as soon as June 2015.

In 2012, OSHA amended the HCS to incorporate provisions of the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The amendments, intended to promote greater global uniformity in chemical hazard communication, revised requirements relating to hazard classification, Material Safety Data Sheets (now called Safety Data Sheets) and labeling for hazardous chemicals. The amended HCS (the 2012 HCS) established a June 1, 2015 deadline for manufacturers and importers of hazardous chemicals to develop SDSs and labels meeting the new requirements.  Distributors face a December 1, 2015 deadline for compliance:  after that date, they must ship chemicals with 2012 HCS-compliant labels.

OSHA has recognized that manufacturers and importers of chemical mixtures may not be able to obtain from their upstream suppliers the information necessary for them to comply with the new SDS and label requirements. Such difficulties necessarily also affect downstream distributors’ ability to comply with their own obligations, since distributors are required to ship substances with HCS-compliant labels and SDSs received from upstream manufacturers and importers.  Accordingly, the guidance documents provide OSHA inspectors with flexibility to refrain from issuing citations for noncompliance, if the manufacturer, importer or distributor of the chemical mixture demonstrates that it exercised reasonable diligence and good faith efforts to obtain the necessary information.

The manufacturer or importer seeking the benefit of this enforcement discretion must provide “persuasive” documentation of its substantive efforts to: (1) obtain the information from its upstream supplier(s); (2) find hazard information from alternative sources; and (3) classify the hazard itself.  In making this determination, the OSHA inspector must consider whether the manufacturer or importer:

  • Developed and documented the process used to gather the necessary classification information from its upstream suppliers and the current status of such efforts;
  • Developed and documented efforts to find hazard information from alternative sources (e.g., chemical registries);
  • Provided a written account of its continued communications with upstream suppliers, including dated copies of all relevant written communications;
  • Provided a written account of continued communications with distributors, including dated copies of all relevant communications with its distributors informing them why it has been unable to comply with the new requirements; and
  • Developed the course of action it will follow to make the necessary changes to SDSs and labels once the information becomes available.

In such circumstances, the manufacturer or importer must continue to comply with the “old” Material Safety Data Sheet and label requirements. The entity must create a 2012 HCS-compliant SDS within six months after obtaining the necessary information, and provide the compliant SDS with the next shipment of the material. The entity must create 2012 HCS-compliant labels within six months after it has developed a compliant SDS.

Similarly, if a distributor of a chemical mixture is unable to meet its December 2015 deadline due to the manufacturer’s or importer’s inability to comply, the distributor also may enjoy the benefit f OSHA’s enforcement discretion if it can demonstrate: (1) the exercise of reasonable diligence and good faith efforts to comply; and (2) compliance with the “old” requirements applicable to distributors. The distributor must provide 2012 HCS-compliant SDSs with the first shipment after it receives those SDSs.

The May 2015 guidance provides other relief for manufacturers, importers and distributors by clarifying that there is no requirement to re-label existing stock that is already packaged for shipment (e.g., boxed, shrink-wrapped, or palletized) prior to the applicable compliance deadline, as long as: (1) such stock is labeled in accordance with the “old” label requirements; and (2) the entity provides 2012 HCS-compliant labels and SDSs for “each and every individual container shipped.” If the entity cannot provide compliant labels and SDSs for such existing, packaged stock due to the inability to obtain the information necessary to do so (see discussion above), then the entity may seek the benefit of the enforcement discretion already described.

Ann Grimaldi

About Ann Grimaldi

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California’s Safer Consumer Products Regulations, California’s Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.

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