Do the OSHA Proposed Amendments to the Hazard Communication Standard Clarify or Create Burden for Stakeholders?

On February 16, 2021, the Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking (NPRM) to amend the Hazard Communication Standard (HCS). On April, 12, 2021, OSHA published a Federal Register notice to extend the comment period of the NPRM to amend the HCS by one month. The HCS is the federal-level regulation that sets forth the classification, labeling, Safety Data Sheet (SDS), and training requirements for hazardous chemicals intended to be used, handled, or stored in workplaces. The notice is open for comment until May 19, 2021, and OSHA intends to schedule an informal public hearing. OSHA notes in the NPRM that several of the proposed revisions to the regulatory text are meant to incorporate previous Letters of Interpretation (LOI) and provide clarification of obligations. The pressing question we seek to answer below is whether the changes to regulatory text clarify the issue or create additional burdens.

Background

In 2012, the first update to the HCS since 1994 was published in the Federal Register. 77 Fed. Reg. 17574. The notice revised and amended the previous HCS substantially as it introduced the United Nations’ (UN) Globally Harmonized System of Classification and Labelling of Chemicals (GHS) concepts into the regulatory framework. At the time of publication, HCS 2012 was based on Revision 3 (Rev 3) of GHS. The UN updates and revises the GHS model on a biannual basis, and at this time, the most current version is Rev 8. OSHA is proposing an update to align with Rev 7 and includes several other points of clarification and revision in the notice. For a more detailed discussion on a few of the more significant changes, see our February 16, 2021, memorandum, “OSHA Proposes Amendments to the Hazard Communication Standard.”

Proposed Amendment to 29 C.F.R. Section 1910.1200(d)(1)

OSHA notes that no changes to the purpose, or the scope and application, of the HCS appear in the NPRM. OSHA states that several LOIs were included in the NPRM. One of significance relates to the obligations of hazard classification in 29 C.F.R. Section 1910.1200(d)(1).

The redline edits include the following.

(d)(1) Chemical manufacturers and importers shall evaluate chemicals produced in their workplaces or imported by them to classify the chemicals in accordance with this section. For each chemical, the chemical manufacturer or importer shall determine the hazard classes, and where appropriate, the category of each class that apply to the chemical being classified under normal conditions of use and foreseeable emergencies. The hazard classification shall include any hazards associated with a change in the chemical’s physical form or resulting from a reaction with other chemicals under normal conditions of use. Employers are not required to classify chemicals unless they choose not to rely on the classification performed by the chemical manufacturer or importer for the chemical to satisfy this requirement paragraph (d)(1).

OSHA CPL 02-02-079 states that

[w]hoever performs the classification is responsible for the accuracy of the information. The evaluation must assess the hazards associated with the chemicals including hazards related to any anticipated or known use or foreseeable emergency which may result in worker exposure. Usually, the chemical manufacturer possesses knowledge of hazardous intermediates, by-products, and decomposition products that can be emitted by their product.

Furthermore, OSHA provides additional interpretation that

[t]he terminology ‘exposed under normal conditions of use or in a foreseeable emergency’ excludes substances for which the hazardous chemical is inextricably bound or is not readily available, and, therefore, presents no potential for exposure. (‘Exposure’ includes accidental or possible exposure, see definition under paragraph (c) of the standard). Further, employees such as office workers or bank tellers who encounter chemicals only in ‘non-routine,’ isolated instances are not covered. However, an employee in a graphic arts department who ‘routinely’ uses paints, adhesives, etc., would be covered by the HCS.

This clarifying text is not included in the NPRM. The term “exposure” is slightly modified in the NPRM as shown below.

Exposure or exposed means that an employee is subjected in the course of employment to a hazardous chemical that is a physical or health hazard, and includes potential (e.g., accidental or possible) exposure. “Subjected” in terms of health hazards includes any route of entry (e.g., inhalation, ingestion, skin contact or absorption.)

The intent of the hazard classification language in the directive CPL 02-02-079 and of the definition of exposure in the above is exclusive to the individual performing the hazard assessment and the employee in the course of employment. It does not include any direct requirement to consider the exposure and hazard potential to downstream users or workplaces.

OSHA references in a 2016 LOI further consideration for the content above and cites these sources and the directive CPL 02-02-079 as the reasoning behind the language in the NPRM. The 2016 LOI clarifies that

[A] manufacturer’s or importer’s hazard determination or hazard classification must anticipate the full range of downstream uses of their products and account for any hazardous by-products which may be formed.

Further to that point, OSHA notes that

[m]anufacturers and importers covered by the HCS 2012 must make a reasonable effort to obtain reliable information to determine how their product(s) or by-product(s) may expose workers under normal conditions of use or in foreseeable emergencies. A manufacturer’s or importer’s hazard classification must anticipate the full range of downstream uses of its products and account for any hazardous by-products that are known to be present and may be formed. However, there is no requirement that each and every downstream work environment be contacted to obtain the hazard information.

By inclusion of the expanded text proposed in the NPRM, OSHA appears to require chemical manufacturers and importers to evaluate chemicals produced in the workplaces and not just to include the hazards identified in the immediate workplace, but also to identify hazards associated with anticipated changes under normal conditions of use or in a foreseeable emergency. The proposed text does not provide the additional clarification from the directive CPL 02-02-079 nor the 2016 LOI that there is no requirement that each and every downstream work environment be contacted to obtain the hazard information. It also appears to imply, with the additional regulatory text, a change in the scope of the HCS and hazard classification obligations. The scope of HCS requires

chemical manufacturers or importers to classify the hazards of chemicals which they produce or import, and all employers to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, safety data sheets, and information and training. In addition, this section requires distributors to transmit the required information to employers. (Employers who do not produce or import chemicals need only focus on those parts of this rule that deal with establishing a workplace program and communicating information to their workers.).

The scope does not include an obligation to base that classification on hazards beyond the immediate workplace (i.e., an establishment, job site, or project, at one geographical location containing one or more work areas) where the employee is working, to include hazards associated with downstream users during normal conditions of use and in a foreseeable emergency (i.e., any potential occurrence, such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment that could result in an uncontrolled release of a hazardous chemical into the workplace). Some believe that most manufacturers and importers possess a basic understanding of the proposed use of the chemicals they produce. This seems reasonable. To expand the regulatory text to require identification of hazards beyond the workplace and to require employers to address downstream workplaces with which they are unfamiliar and well beyond their direct knowledge and control is not reasonable, nor is it a logical extension of the regulatory language.

Commentary

The inclusion of the clarification text provides additional items for consideration. It does not appear to provide, however, as much clarity as does the 2016 LOI and the directive CPL 02-02-079, from which the text was developed. The proposed text could be viewed as an expansion of obligations to classify hazards outside the employer’s workplace and to consider downstream uses and chemical reactions. This interpretation is potentially problematic, as many areas outside the control of the individual performing the hazard assessment cannot be assessed accurately, and such an interpretation would seem to obligate the hazard assessor to consider hazards well beyond the employee in the employer’s workplace and the immediate customers’ expected use. Chemical manufacturers, importers, and distributors should review the changes and prepare comments to OSHA on the applicability and utility of these changes in their operations. Stakeholders should note that OSHA will only consider comments that are provided officially, and any content provided in responses to the NPRM are public. Stakeholders should provide OSHA with sufficient detail to allow thoughtful consideration to any proposed changes to the current language in the NPRM.