Effective July 9, 2015, OSHA has taken a new stance on the enforcement of its Hazard Communication Standard (HCS). Publication of the final rule took place on March 26, 2012, updating the HCS to include components of the United Nations’ Global Harmonization Standard (GHS). Designed to provide guidance for its inspectors on enforcing the revised requirements during the transition period, OSHA’s new instruction to its enforcement personnel will be the standard once the rule is fully implemented. The enforcement bulletin (CPL 02-02-979) applies across all industries regulated by OSHA. State plan states are expected to have equivalent—or more stringent—requirements in place.
JUMP START ON ENFORCEMENT
In the absence of this guidance, OSHA was already issuing citations for failure to comply with the revised rule, 29 CFR 1910.1200. In 2014, HazCom was OSHA’s second-most cited standard.
The employee training components of the new labeling and SDS requirements took effect on December 1, 2013, requiring retraining of virtually every employee under OSHA jurisdiction by that date. All provisions of the rule come into effect on June 1, 2016, at which time employers are to have updated their written hazard communication program and any alternative workplace labeling, and provided additional worker training for any newly identified physical or health hazards.
Manufacturer/importer requirements for revised labels and SDSs took effect on June 1, 2015. Recognizing that some downstream manufacturers were dependent on other chemical manufacturer’s information to complete their own revisions for the final products, OSHA’s new enforcement guidance says it will stay enforcement on that provision if the manufacturer was making a good faith, “reasonably diligent,” effort to obtain the information needed to create a new SDS. Distributors of covered chemical products must comply by December 1, 2015.
OSHA will assess the adequacy of a company’s hazard classification primarily by examining the outcome of that classification: by the accuracy and adequacy of the information on labels and SDSs and by reviewing the manufacturer’s hazard classification procedures and calculations. OSHA will cite manufacturers if they do not consider the full range of scientific literature or ignore studies that do not support their conclusions.
BREAKING DOWN THE HIGH POINTS
On multi-employer worksites, OSHA considers all employers with workers present, as well as those who expose other employers’ workers, to be responsible for compliance. Multi-worksite employers must include the methods they will use in their HCS program to provide other employers with on-site access to SDSs. The standard covers each hazardous chemical to which other employers’ workers may be exposed. The host employer must ensure that there are no barriers to employees’ access to HCS information; everyone must know how to access the documents. Other high points include:
- Companies in compliance with the minimum requirements of HCS 2012 will not be issued citations.
- If an inspector observes a label or SDS that has precautionary statements, hazard statements, or pictograms that appear different from what HCS 2012 requires, then they must determine “if the information contradicts or casts doubt on OSHA required information.”
- Precautionary statements—hazard statements that are incorporated from the GHS—must be changed to mandatory language.
- In issuing citations, the inspector must take photos or video of the chemicals in question and get copies of the “inadequate” SDSs.
- OSHA will document the chemical name and hazardous ingredients, frequency, and duration of use, number of exposed employees, and the health and physical hazards to aid in supporting a “serious” citation classification, or egregious enforcement, where a separate penalty is issued per affected worker.
- In cases where an old version of the citation for HCS 2012 was issued, inspectors can issue a repeat violation citation; however, inspectors should explain the paragraph number change of the citation in their field notes.
- Existing labels that have been removed or defaced, but are not “immediately marked” with the required information will trigger citations.
The standard covers all employee exposure to hazardous chemicals present in the workplace under normal conditions of use and foreseeable emergencies. The guidance alerts inspectors that “known to be present” is an important element of HCS and includes bricks, metal ingots, wood products both combustible and potentially causing respiratory hazards, welding rods/wire, acid batteries, and oil/gas products.
HOW TO PREPARE
What can you do? For employers, it will be critical to document provided training. Ensure that there is a framework in place for review of new SDS and label information. Relay and document any new information to workers. Pay special attention to any changes in respiratory protection or other personal protective equipment, first aid and emergency responder information, and toxicological data.
Also, note any changes to the occupational exposure limits on the SDS, including those more protective than OSHA PELs or for chemicals where OSHA has no enforceable PELs. OSHA can cite employers using those limits in certain circumstances under the agency’s “General Duty Clause,” so it is critical to implement the maximum feasible controls to limit worker exposures. Manufacturers have to take a fresh look at the scientific data relating to their products’ chemicals causing newer studies to reveal additional health effect warnings, which may now appear on the SDSs and labels.
Employers should make sure to replace the old MSDSs with the revised SDSs as they are received from the manufacturer, but make sure to keep the historical copies of the outdated forms as required. Workers and unions may seek to access that information in the event of workers’ compensation or other injury claims.
Now is the time to check your compliance status with the new HCS requirements, because the issuance of this revised enforcement policy is going to bring workplace programs under heightened scrutiny. ■
About The Author: Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, August 2015
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