With the June 1, 2015 deadline looming for compliance with the 2012 Globally Harmonized System amendments to the Hazard Communication Standard, the federal Occupational Safety and Health Administration has issued an enforcement guidance document that may spell relief for those companies which are unable to obtain necessary information from their upstream suppliers. This enforcement guidance applies only to manufacturers, importers and distributors of chemical mixtures, with respect to their hazard classifications and development of safety data sheets (and for distributors, SDS transmission) and labels. Under the new guidance, such entities will not be cited for failing to meet the applicable deadline, if the reason for the failure is that they were unable to obtain the necessary information from their suppliers despite the exercise of reasonable diligence and good faith. OSHA’s enforcement policy as described in the guidance document shall not exceed two years.
In 2012, OSHA amended the Hazard Communication Standard (HCS) to incorporate elements of the Globally Harmonized System for the Classification and Labeling of Chemicals (GHS). The amendments transformed certain key elements of the HCS: chemical classification, safety data sheets (SDSs) and labels. Understanding that the GHS amendments would require some time for affected companies to implement, OSHA developed a staggered set of deadlines for manufacturers, importers, distributors and employers. The deadline for companies to comply with all aspects of the 2012 HCS is June 1, 2015, with the following exceptions: (1) distributors may continue to ship products labeled under the old system until December 1, 2015; and (2) employers have until June 1, 2016 to update workplace labeling and hazard communication programs, and to provide additional worker training.
In classifying the hazards of mixtures, manufacturers and importers may rely on information provided by upstream suppliers. That is the case under the “old” HCS, and remains the case under the 2012 HCS. Such manufacturers and importers are placed in a difficult position when their upstream suppliers do not provide them with the information necessary to comply with the HCS. In these circumstances, OSHA’s enforcement guidance establishes criteria for when a manufacturer’s or importer’s failure to meet the June 1, 2015 deadline will not result in a citation: the company must have exercised reasonable diligence and good faith, and the company’s material safety data sheets and labels must comply with the “old” HCS.
In order to determine whether a manufacturer or importer has meet the criteria of reasonable diligence and good faith, OSHA will review the entity’s overall efforts, attention and actions taken to comply. The company must have attempted to obtain the necessary information from its supplier by both oral and written communications, and must have undertaken steps to try to obtain the necessary information in a timely way, i.e., in a manner that would have allowed it to comply with the June 1, 2015 deadline had the upstream supplier complied. Upon request from OSHA, the company must provide documentation of efforts to:
- Obtain classification information and SDSs from upstream suppliers;
- Find hazard information from alternative sources; and
- Classify the data themselves.
Distributors also may be placed in difficult compliance situations when an upstream supplier fails to provide necessary information. Where a distributor has missed its December 1, 2015 deadline, it too may able to avoid a citation if it can demonstrate reasonable diligence and good faith. OSHA will evaluate the overall circumstances, and distributors must be able to demonstrate attempts to communicate with the manufacturer or importer about the circumstances of the noncompliance.
Under the new enforcement policy, manufacturers and importers must develop compliant SDSs and labels within six months after receiving all of the hazard information for the mixture ingredients, and must provide the new SDSs downstream with their next shipments. Distributors receiving 2012 HCS-compliant SDSs, after their December 1, 2015 deadline, must transmit those SDSs with their next shipments.