OSHA, on March 26 in the Federal Register, published the final rule to integrate the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS) into OSHA’s hazard communication (HazCom) standard. The amended HazCom standard requires employers to classify chemicals according to their health and physical hazards, and to adopt new, consistent formats for labels and safety data sheets (SDS)1 for all chemicals manufactured or imported in the United States.

When introducing the final rule, Assistant Secretary of Labor for OSHA Administrator Dr. David Michaels said, “This is a very exciting day for OSHA. We’ve been working on this standard for quite some time. Over the years, it became clear that the old HazCom standard was inadequate because of inconsistency and inaccuracy, which affected workers who had trouble finding the information they needed.”

The old HazCom standard was lauded for years as employees’ “right to know” about the hazards they faced in the workplace. Since it was first issued in 1983, the HazCom standard required employers to provide information about the various hazards, treatment and mitigation measures, and proper handling and storage of chemicals in the workplace. Chemical manufacturers and importers were required to:

➤ Evaluate the hazards of chemicals;

➤ Provide information about the hazards through labels and material safety data sheets (MSDS);

➤ Implement a written hazard communication program;

➤ Maintain a list of all hazardous chemicals in the workplace; and

➤ Train all employees in the program.

As a performance-based standard, the previous HazCom standard provided only guidance for defining hazards and for performing hazard determinations.

The United Nations’ GHS provides a single set of harmonized criteria for classifying chemicals according to various health hazards (e.g., irritation, sensitization and carcinogenicity) and physical hazards (e.g., fire, explosion and corrosion), and specifies model formats and substantive requirements for labels and SDS. GHS is not a mandatory regulation, but it is implemented globally throughout the EU, China, Australia and elsewhere. Labor Secretary Hilda Solis characterized GHS as an “unprecedented international effort to establish a common framework” for classifying and labeling chemicals, and said “this information will reduce confusion in the workplace, especially for low-wage and low-literacy workers.”

The new harmonized HazCom standard from OSHA amends the existing HazCom standard by integrating GHS. The “harmonized” standard ensures that employees will continue to have access to labels and SDS, but now that information should be easier to find and more understandable because of standardized formats and information, including the use of common signal words, pictograms, hazard statements and precautionary statements. According to Michaels, “OSHA’s 1983 hazard communication standard gave workers the right to know … this update will give them the right to understand.” 2

OSHA estimates the new HazCom standard will impact more than 5 million workplaces and 43 million employees. OSHA estimates the total cost for complying with the new standard for all employers and industries to be $201 million per year on an annualized basis. This total cost includes, among other activities, classifying chemical hazards, revising SDS, creating or modifying labels to meet new requirements, training employees in the new warning symbols and revised SDS, familiarizing management with the new GHS system and printing new packaging and labeling materials for hazardous chemicals.

10 Things Employers Need to Know

1) Hazard classification: The new standard has specific criteria for classifying health and physical hazards into a (i) hazard class and (ii) hazard category. The hazard class indicates the nature of hazard (e.g. flammable liquids, carcinogen and explosives) and the hazard category is the degree of severity within each hazard class (e.g. flammable liquid includes four hazard categories).3 The hazard classification is based on the weight of evidence using expert judgment. However, with respect to some hazard categories, all studies performed according to good scientific principles that result in a finding that the chemical falls into a hazardous class must be disclosed on SDS, even if the weight of the evidence suggests that it does not. For example, if one study reports that a chemical is carcinogenic, but 10 other studies report the opposite, that one study still must be disclosed on the SDS. Employers may explain away that study, but the finding must at least be included on the SDS. According to OSHA, the specific criteria will help to ensure consistent evaluations of hazardous effects, and in turn provide more accurate labels and SDS.

2) Mixtures: Unlike the old HazCom standard, which defined across-the-board percentage cut-offs for mixtures, the new standard employs a tiered approach to classifying mixtures. Evaluating health hazards of mixtures is based on data for the mixture as a whole when such data is available. If data is not available, however, manufacturers and importers may extrapolate from data on ingredients and similar mixtures to classify the mixture. Additionally, “[w]hen chemical manufacturers and importers are classifying mixtures, they [generally may] rely on the information provided on current safety data sheets of the individual ingredients.”

3) New label requirements: Where the old HazCom standard gave manufacturers and importers discretion to convey any language on labels they deemed appropriate, the new standard provides specific information required on all labels. The new label requirements directly are linked to the hazard classification. For each hazard class and category, chemical manufacturers and importers are required to provide harmonized signal words, pictograms with red borders,5 and hazard statements. Additionally, precautionary statements are required on the labels to describe recommended measures to protect against hazardous exposures. Product identifiers and supplier information are also required.

4) Safety data sheets: The new HazCom Standard uses a standardized, 16-section format for all SDS to provide a consistent sequence for organizing the information.

5) Non-mandatory threshold limit values in SDS: After several exchanges with industry organizations, internal deliberations and floating different draft proposals, OSHA ultimately decided to require employers to include OSHA’s mandatory permissible exposure limits (PELs) and the non-mandatory threshold limit values (TLVs) developed by the American Conference of Governmental Industrial Hygienists on the SDS. OSHA believes that TLVs on SDS furthers employees’ “right to understand.” In addition to the TLVs and OSHA’s PELs, any other exposure limit used or recommended by the chemical manufacturer, importer or employer preparing the SDSs now are required on the SDS.

6) Information and Training: To facilitate recognition and understanding, employers are required to train employees on the new label elements (e.g. signal words, pictograms and hazard statements) and SDS format by Dec. 1, 2013.

7) Effective dates: In addition to training employees by Dec. 1, 2013, compliance with modified provisions of the final rule is required by June 1, 2015. Distributors, however, may ship products labeled under the old HazCom standard until Dec. 1, 2015. Finally, by June 1, 2016, employers must update workplace labeling and written hazard communication programs as necessary, and provide additional worker training for newly identified physical and health hazards. During the transition period, all chemical manufacturers, importers, distributors and employers may comply with the old HazCom standard, the amended HazCom standard or both. The chart above summarizes the rolling effective dates of the new standard. 8

8) Hazards not otherwise classified: Hazards covered under the old HazCom standard but not addressed by GHS are covered under a separate category titled “Hazards Not Otherwise Classified” (HNOC). In the notice of proposed rulemaking, OSHA originally titled this category “Unclassified Hazards.” Due to industry comments, however, OSHA renamed the category to HNOC. “Chemical manufacturers and importers are expected to assess [HNOC] hazards when they are conducting their hazard evaluation of physical and health hazards,” but are not required to conduct new or separate evaluations.9 Hazards classified as HNOC need only be disclosed on the SDS under Section 2: Hazard(s) Identification, and do not need to be disclosed on labels. Notably, pyrophoric gases, simple asphyxiants and combustible dust are not classified under the HNOC category in the new standard, as OSHA originally proposed in the NPRM. Rather, these chemicals are addressed individually in the new standard.

9) The new HazCom standard does not preempt state tort law: Following the Obama administration’s broad policy against federal preemption, the new HazCom standard does not preempt state tort laws. Accordingly, the new standard will not limit personal injury lawsuits at the state level regarding chemical exposures, inadequate warnings on labels and/or failure to warn. Organized labor hailed OSHA’s decision not to preempt state tort law as a victory.

10) Combustible dust: Against much industry protest, the final rule added combustible dust to the definition of hazardous chemicals. This means that combustible dust hazards now must be addressed on labels and SDS. The new standard outlines the label elements required for combustible dust, including the signal word “warning” and the hazard statement, “May form combustible dust concentrations in the air.” Notably, OSHA failed to provide a definition for combustible dust in the new standard, creating uncertainty for employers. OSHA claims that it did not give a definition due to the ongoing combustible dust rulemaking and work of the United Nations’ Sub-Committee of Experts on the GHS. Instead, OSHA pointed to existing documents, including OSHA’s Hazard Communication Guidance for Combustible Dusts, OSHA (3371-08 2009) and its Combustible Dust National Emphasis Program Directive (CPL 03-00-008), as guidance on the nature and definition of combustible dust. Although the new HazCom standard expressly states that combustible dust is covered, OSHA’s failure to define combustible dust likely will create substantial confusion.

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Eric J. Conn is head of Epstein Becker Green’s OSHA Practice Group, which is part of the firm’s National Labor and Employment Practice in the Washington, D.C., office. To learn more, visit http://www.ebglaw.com.