By Brent I. Clark, Ilana R. Morady, and Craig B. Simonsen
We had previously blogged that June 1, 2015 is the deadline for compliance with the all new hazardous communication (HazCom) standard (29 CFR section 1910.1200) (HCS 2012) requirements, with exceptions for chemical distributors, and for employers to update workplace labeling and hazard communication programs. 77 Fed. Reg. 17574 (March 26, 2012).
Industry and trade associations have filed petitions and submitted comments with OSHA related to the final rule to “resolve critical compliance concerns with the implementation of the revised Hazard Communication Standard”. In response, OSHA agreed to use its enforcement discretion to provide relief from the June 1, 2015 implementation date for product formulators.
To do so, OSHA has just issued an Enforcement Guidance on the June 1, 2015 effective date. The Enforcement Guidance applies only to HCS 2012 compliance inspections of chemical manufacturers, importers, and distributors in their classification of hazardous chemicals and development of safety data sheets (SDSs) and labels for chemical mixtures.
Under the Enforcement Guidance, in classifying mixtures, manufacturers and importers are permitted to rely on “information provided on each SDS of the individual ingredients or components from the upstream supplier, except where the chemical manufacturer or importer knows, or in the exercise of reasonable diligence should know, that the SDS misstates or omits required information.” For OSHA inspections occurring after the June 1, 2015 compliance date that involve a mixture that does not have an HCS 2012-compliant label or SDS, compliance officers shall follow the instructions provided in the Enforcement Guidance.
Specifically, where a manufacturer or importer has asserted that it was unable to comply with the June 1, 2015 compliance date, the compliance officer “must determine if the manufacturer or importer has exercised reasonable diligence and good faith to comply with the terms of the standard.” Compliance officers should not cite a manufacturer or importer for failing to meet the June 1, 2015 deadline to have updated labels or updated SDSs under HCS 2012, if:
The chemical manufacturer or importer exercised reasonable diligence and good faith in attempting to obtain HCS 2012-compliant SDSs and classification information from its upstream raw material supplier(s).
Importantly, the guidance only applies where the mixture’s material safety data sheet (MSDS) and label comply with the earlier HCS 1994 standard.
New Deadlines Under the Enforcement Guidance
Now, under the Enforcement Guidance, a manufacturer or importer must create HCS 2012-compliant SDSs within six months from the date it receives all of the hazard information for the ingredients in a mixture. The manufacturer or importer will then be required to provide the HCS 2012-compliant SDS downstream “with the next shipment of the mixture” and when requested by a distributor or employer. Where a chemical manufacturer or importer has not developed an HCS 2012-compliant SDS within six months of receiving the necessary hazard information, a citation for a violation may be issued.
In addition, a manufacturer or importer must create container labels to comply with HCS 2012 within six months from the date that they developed the HCS 2012-compliant SDSs. Containers shipped after the six months period must be labeled with an HCS 2012-compliant label. Where a manufacturer or importer has not developed an HCS 2012-compliant label within six months of the date it developed its HCS 2012-compliant SDS, a citation for violation may be issued.
As to distributors, the HCS 2012 permits distributors to continue to ship chemicals with HCS 1994 labels until December 1, 2015. However, under the Enforcement Guidance, where a manufacturer or importer cannot comply with the June 1, 2015 effective date, there may be distributors that are consequently unable to comply with the December 1, 2015 compliance date. In that situation, the Enforcement Guidance advises, a compliance officer will determine, on a case-by-case basis, “whether a distributor exercised reasonable diligence and good faith to comply with the December 1, 2015 effective date.”
The Enforcement Guidance spells out in some detail what the Agency means by “reasonable diligence” and “good faith efforts,” so the regulated community should seek diligently to conform its policies, procedures, and training systems to ensure compliance.