On May 29, 2015, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published the “Interim Enforcement Guidance for Hazard Communication 2012 (HCS 2012) June 1, 2015 Effective Date” (Interim Guidance). This supplements the February 9, 2015, “Enforcement Guidance for the Hazard Communication Standard’s (HCS) June 1, 2015 Effective Date” (Enforcement Guidance). The Interim Guidance clarifies specific points to manufacturers, importers, and distributors on OSHA’s HCS enforcement strategy.
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. OSHA has drastically modified the process by which hazards are classified and the elements required on Material Safety Data Sheets, now called Safety Data Sheets (SDS), and labels. All labels and SDSs had to meet the new criteria by June 1, 2015. This deadline applies to everyone except distributors who may continue to ship products with the old labels until December 1, 2015.
Key Points
The Enforcement Guidance states that OSHA will exercise its enforcement discretion to allow a reasonable time for manufacturers/importers of mixtures to comply — provided a demonstration of “reasonable diligence” and “good faith efforts” is thoroughly documented. The Interim Guidance indicates “where a manufacturer or importer has not received classification information from its upstream supplier(s) on which it intends to rely for the classification of its product before June 1, 2015, the manufacturer or importer may continue use of the HCS 1994 label under certain limited circumstances.”
Documented efforts include a demonstration that the manufacturer or supplier attempted to obtain HCS 2012-compliant SDSs and labels from its upstream suppliers, and a demonstration that no other source of information is available to make these hazard determinations without the upstream supplier-provided details. This demonstration must include documented evidence of an inability to obtain information from alternative sources, including alternative documentation (alternative suppliers’ SDSs or labels) or 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).
Documentation of these efforts must include written accounts of ongoing dialogue with upstream suppliers, as well as continued communication to downstream users who also are potentially impacted. 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). The Interim Guidance states that in limited situations, the manufacturers and importers must create HCS 2012-compliant labels within six months after they develop the updated SDSs. All efforts to take action will be considered by OSHA, and no citation will be issued when it is determined that reasonable efforts were applied.
The Interim Guidance offers labeling relief to those operations where manufacturing of the product occurred prior to June 1, 2015, and inventory was stocked (i.e., boxed, palletized, shrink-wrapped, etc.). The Interim Guidance states “there is no requirement to re-label packaged for shipment containers with HCS 2012-compliant labels.” Labels must be provided for individual shipped containers, unless the previously described documentation applies (reasonable diligence and good faith efforts).
Distributors should consult OSHA definitions carefully before assuming the December 1, 2015, labeling deadline applies. OSHA excludes repackaging, blending, or mixing hazardous chemicals in the scope of distribution. The Interim Guidance states “all containers in the control of a distributor after December 1, 2017, must be HCS 2012-compliant labeled prior to shipping.”
Discussion
The Guidance documents provide explicit “how to” guidance in persuading OSHA to exercise its enforcement discretion in cases where manufacturers did not meet the June 1, 2015, HCS effective date. These documents are “must reads” for entities who wish to remain compliant and avail themselves of opportunities for relief if potential non-compliance is unavoidable.
