The Occupational Safety and Health Administration (OSHA) began the Herculean task of aligning the U.S.'s Hazardous Communication Standard (HCS) with the United Nations Globally Harmonized System of Classification and Labeling of Chemicals (GHS) in September 2009. GHS provides harmonized criteria for classifying chemicals according to their health and physical hazards, and specifies hazard communication elements for labeling and creating safety data sheets (SDS).
The HCS is the core federal rule intended to communicate hazards within the workplace. As such, the HCS is a critically important tool that complements and reinforces other essential components of workplace safety, including process safety management, respiratory protection, and other safety and health standards. Following is a summary of the key aspects of the proposal.
HCS Requirements
The HCS requires chemical manufacturers and importers to evaluate chemical hazards and provide information to downstream users. OSHA's proposed modifications to align the HCS with the GHS include revised criteria for chemical hazard classification; revised labeling provisions; a specified format for SDSs; and related revisions to definitions of terms used in the standard and employee training requirements on labels and SDSs. OSHA is also proposing to modify provisions of a number of other standards, including standards for flammable and combustible liquids, process safety management, and most substance-specific health standards, to ensure consistency with the modified HCS requirements.
Key Proposals
OSHA has proposed several major changes to the HCS:
Hazard Classification — OSHA wants to replace the current HCS hazard determination requirement with all of the physical and health hazard classes listed in the GHS. OSHA is proposing to include all hazard categories in the GHS except Acute Toxicity Category 5 for oral, dermal or inhalation exposures; Skin Corrosion/Irritation Category 3; and Aspiration Hazard Category 2. Additionally, chemical producers and importers would be required to classify the mixture, as opposed to current HCS rules where hazard determinations are based on hazardous components in mixtures above a 1% threshold or 0.1% for carcinogens, unless the mixture has been tested as a whole.
Labels — OSHA proposes that chemical manufacturers and importers be required to provide a label that includes a harmonized signal word, pictogram, and hazard statement for each hazard class and category. Precautionary statements also must be provided.
Safety Data Sheets — OSHA seeks to require that permissible exposure limits be included on the SDS, which would replace the Material Safety Data Sheet term, as well as any other exposure limit used or recommended by the chemical manufacturer, importer, or employer preparing the SDS.
[pullquote]Additional Impact
Several other issues may have a direct impact on the chemicals industry.
Economic Impacts and Economic Feasibility — As the proposal affects 5 million workplaces, OSHA is interested in comments on the number of affected employees and how many SDSs would need revision, by industry. The agency preliminarily estimated the principal costs of the standard to chemical producers for reclassification of chemicals, remaking SDSs or redoing labels; and to chemical users for familiarization and program changes for managers, and for training exposed employees.
Effects on Small Entities — OSHA certified that the proposed standard won't significantly impact a substantial number of small entities. Therefore OSHA has prepared a voluntary initial regulatory flexibility analysis on which comment was requested.
Effective Dates — OSHA has proposed to require that employers train employees regarding the new labels and SDSs within two years after publication of the final rule to ensure they are familiar with the new approach when they begin to see new labels and SDSs in their workplaces. It was proposed that chemical manufacturers, importers and distributors be required to comply with all provisions of the modified final rule within three years of its publication.
What's Next?
OSHA, on December 29, 2009, announced public meetings in March and April around the country on the proposal. Additional hearings may be convened as appropriate later in the year. In the interim, OSHA will consider the many comments it has received on the proposal. Regulated entities will want to track this rulemaking carefully as it has significant implications for industry.
Lynn Bergeson is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on chemical industry issues. The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice. You can e-mail her at [email protected].