Problems with OSHA proposals

COMMUNICATION BREAKDOWN

OSHA • MAJOR CHANGES ARE BEING PLANNED FOR THE US HAZARD COMMUNICATION STANDARD. NOT ALL IN INDUSTRY ARE HAPPY WITH THE PROPOSALS

THE US OCCUPATIONAL Safety and Health Administration (OSHA) issued a notice of proposed rulemaking (NPRM) this past 16 February, aiming to update the Hazard Communication Standard (HCS) to align with the seventh revised edition of the UN Globally Harmonised System of Classification and Labelling of Chemicals (GHS). The rulemaking also aims to address some issues that arose during the implementation of the 2012 update of HCS and to better align with other federal agencies and international trading partners.

The proposed modifications to the standard include revised criteria for classification of certain health and physical hazards, revised provisions for updating labels, new labelling provisions for small containers, technical amendments related to the contents of safety data sheets (SDSs), and related revisions to definitions of terms used in the standard.

OSHA says it has preliminary determined that the proposed revisions “will enhance the effectiveness of the HCS by ensuring employees are appropriately apprised of the chemical hazards to which they may be exposed, thus reducing the incidence of chemical-related occupational illnesses and injuries”.

HCS was first introduced in 1983, specifically to cover the chemical manufacturing industry. OSHA always envisaged that it would require periodic updates; these included a broadening of its scope to cover all industries where employees could be exposed to hazardous chemicals and a major review for comprehensibility, undertaken in 1994. Since 2012, HCS has been aligned with GHS, then at its third revision, and it has subsequently been updated in line with amendments to GHS.

Those amendments that appeared in the seventh revised edition of GHS, which this NPRM addresses, include revised criteria for the categorisation of flammable gases within Category 1; miscellaneous amendments intended to clarify the definitions of some health hazard classes; additional guidance regarding the coverage of section 14 of the SDS (which is non-mandatory under the HCS); and a new example in Annex 7 addressing labelling of small packages with fold-out labels.

OSHA is also proposing to include some amendments included in the eighth revised edition of GHS.

WORK TO BE DONE In total, the proposed changes are extremely extensive and will have a very significant impact on industry. The National Association of Chemical Distributors (NACD) responded to the NPRM with a lengthy comment, highlighting the burden the HCS revision will have on its members. “Chemical distributors serve a critical role in the middle of the supply chain, and most of these companies have large numbers of suppliers, products, and customers,” said NACD president/CEO Eric R Byer. “Changing SDSs and labels for hundreds or even thousands of chemical products is a major undertaking for these companies.”

To illustrate the extent of that undertaking, one NACD member has estimated that it would need to review 10,000 SDSs and update 4,000 of them. OSHA has calculated that each review should take 0.7 hours, which gives a figure of 16 months of dedicated work for this company. Further, NACD says, “some of the proposed changes are not necessary for harmonisation and would create excessive burdens for chemical manufacturers and distributors while adding needless complexity and liability to the system”. Moreover, those changes would not offer any comparable improvement in worker protection.

In general, NACD feels that updating HCS in line with the biennial revision of GHS is not necessary and is unduly burdensome; most of

its members favour either a four-yearly cycle or revisions only when there are significant changes. In addition, it has urged OSHA to provide as much advance notice and transparency as possible, with a running list of anticipated changes and more outreach to the regulated community on the status and timeframe for changes to HCS.

CONFLICTING STANDARDS More specifically, NACD has identified some problems with OSHA’s proposals. For one, a new definition of ‘bulk shipment’ would conflict with the existing definition of ‘bulk packaging’ in the Hazardous Materials Regulations (HMR) for transport, particularly in their treatment of intermediate bulk containers (IBCs); if not corrected, this will cause unnecessary confusion and problems in training. NACD urges OSHA to copy the definition of ‘bulk packaging’ that has long been used in HMR.

Further confusion stems from the proposal to add a new paragraph (f)(5)(ii) to require that the label for bulk shipments may be on the intermediate container or may be transmitted along with other electronic documentation so that it is immediately available to workers in printed form at the consignee. NACD feels this is unnecessary; a DOT placard is always suitable for shipment and the receiver will have the product’s SDS before the goods arrive, and which provides far more information than the label.

In addition, NACD highlights the difference in HMR between hazardous materials being ‘marked’ and ‘labelled’. It recommends OSHA amend its proposed (f)(5)(ii) so as to avoid confusion about the meaning of ‘the label’. It also recommends additional wording to address the location of HCS labels and DOT labels on a package.

The proposed definition of ‘combustible dust’ does not match that used by the National Fire Protection Association (NFPA) and, in NACD’s opinion, is “far too broad”. Consistency is required, not least for those distributors importing material from foreign suppliers with different or non-existent standards.

OSHA is proposing to define ‘released for shipment’ as ‘a chemical that has been packaged and labeled in the manner in which it will be distributed or sold’. NACD believes this is not only potentially confusing but altogether unnecessary.

In addition, the update to paragraph (f)(11) requires the ‘date chemical is released for shipment’ to be included on the HCS label. In part, this is to allow goods to move even after changes to the chemical hazards have been advised. This might seem helpful but, NACD says, will in practice be logistically complex and unfeasible in some market segments. For a start, it would require new labels to be produced for each shipment or even individual container, despite OSHA’s intention that products would not need to be relabelled.

Sending new labels separately for every individual container also raises safety concerns. Most customers of chemical distributors do not want to be in the relabelling business, nor should they be. If these customers receive new labels for each container, they may assume they are required

OSHA’S PROPOSALS, IF ENACTED, WILL CAUSE

IMMENSE PROBLEMS AND A LOT OF WORK FOR

CHEMICAL DISTRIBUTORS, PARTICULARLY THOSE

to attach them. The ergonomic impact of removing a load of 50-pound bags from a pallet would be substantial. It is unlikely a receiver of a palletised load will be able to break down the pallet, label and reassemble the pallet without a back injury, other ergonomic injury, or chemical exposure from unnecessary handling.

In addition, if a customer opts to apply the labels, there is no guarantee they will apply the labels to the correct containers. This could subject all parties in the supply chain, including chemical distributors, to liability if products are relabelled incorrectly. The pharmaceutical industry provides an example of the need for strict label control. Pharmaceutical products have tight label reconciliation processes, so sending separate electronic or print labels is a non-starter. All pharmaceutical products would need to be relabelled in-house prior to shipment.

LABELS AND SHEETS OSHA proposes several changes to the labelling requirements, many of which are editorial, clarifying or organisational. It also proposes significant updates to the precautionary statements in every hazard class and category and to require prioritisation of certain statements related to medical response.

These are, NACD says, “massive changes” that could require many companies to relabel all their products, involving extensive software updates. Those changes are possible but will take more time than OSHA anticipates, NACD says. OSHA is also considering moving to the precautionary statements agreed for the eighth revised edition of GHS, a move that NACD says makes sense. However, the transition will take a few years.

NACD is also concerned that changes to the HCS label will require the addition of further information, making it even harder to read than it is at the moment. To enhance worker safety, labels need to be as user friendly as possible, NACD says. If there is too much data on the label, users may not be able to identify quickly the most essential information. The SDS provides the comprehensive information that will be the main resource if someone is hurt.

OSHA is proposing to require the address and telephone number shown on the SDS to be domestic, which will be a significant change for some foreign suppliers and importers. If the supplier cannot provide a US address and phone number, these will have to be provided by the importer, which would then assume liability for all the information. NACD agrees it would be helpful to have this requirement in HCS so that it can be used to prove to a foreign supplier that it is needed, but it also notes that the similar requirement in Canada’s Workplace Hazardous Materials Information System (WHMIS) results in every imported item being relabelled, causing a compliance burden and risks of exposure.

THE REACH ROUTE Of major concern to NACD is a proposal to add a requirement in Section 2 of the SDS to

NACD WANTS TO SEE THE HAZCOMM STANDARD

ALIGNED WITH OTHER EXISTING PROVISIONS, INCLUDING THE DEFINITIONS OF BULK CONTAINER AND (ABOVE) OF

COMBUSTIBLE DUST, TO MAKE COMPLIANCE AND

include “any hazards associated with a change in the chemical’s physical form under normal conditions of use” and identification of hazards that “result from a chemical reaction”. This requirement, similar to that already in force in Europe, would create an “impossible situation” for chemical manufacturers and distributors in the US, NACD says. Its members sell to widely differing markets and there is no way to ascertain all the different “normal conditions” of use. “Determining downstream hazards is outside the scope of the HCS responsibilities for a distributor or producer,” NACD reasons, as HCS applies only to the workplace.

Any chemical that can be mixed with other chemicals could have an extensive list of hazards that “result from a chemical reaction”, NACD also notes. The intent of this proposal seems to be to cover those products meant to undergo a specific reaction as part of their use, rather than at general use chemicals. These are already identified in other sections of the SDS. Moreover, liability concerns with attempting to comply with the requirement could generate a lot of work for lawyers with no enhancement of worker safety. NACD urges OSHA to withdraw this proposed change, which is sees as a significant expansion of the scope of HCS.

OSHA is also considering whether the chemical name and concentration of all classified chemicals – not just those classified as ‘health hazards’ – must be indicated in Section 3 of the SDS. Again, this is similar to the REACH Regulation in the EU. NACD has concerns about this too, saying that the hazards should be determined on the basis of the mixture, not on the individual substances it contains. “While the additional concentration information could be helpful in accurately classifying some mixtures, the expansion could become too burdensome and result in the generation of an infinite amount of additional paper that would not ultimately enhance worker safety,” NACD says. Also, these hazards are covered in a general manner in other Sections of the SDS so no change is warranted for Section 3.

OSHA also proposes to update the physical properties list. NACD is concerned about changing this list and does not believe it will advance worker safety. “As individuals look at SDSs and labels, they are accustomed to quickly identifying the information they need. The more lists such as this are changed, the more people need to relearn and make adjustments. Changes like this that do not add value or enhance safety should be dropped,” NACD says.

OTHER ISSUES As part of the NPRM, OSHA has invited comments on the use of electronic labelling for chemical packagings. This concept, NACD says, has both advantages and disadvantages. It could be a practical way to address difficulties in labelling small packages and could also be of great use to emergency responders, particularly if it were to apply to SDSs as well as to labels. On the other hand, some companies have concerns about the use of mobile phones in chemical facilities and there are also technological challenges and the need for a standard format.

“If OSHA pursues electronic labelling, this would absolutely need to be optional rather than mandatory; and, with the possible exception of small packages, hard copy labels should also be required as a back-up in case of network failures,” NACD says.

NACD sees a problem in the NPRM, which expects industry to comply with the changes on a fairly short timeframe. It is planned that the changes will be effective 60 days after publication of the final rule, with entities evaluating substances given one year to comply after that date and those evaluating mixtures two years. NACD believes this is inadequate, given the massive changes being proposed for labels and SDSs. In fact, if OSHA adopts the provisions in the eighth revised edition of GHS, several years will be needed to achieve full compliance.

“NACD members’ software vendors estimate that the programming changes to comply with [Section 2] alone could take several months. If other label organisational changes will be made, such as with the medical information, this will only increase time needed for compliance. This will pose a major problem as some companies are still struggling with HCS 2012 changes,” NACD says. It believes a more realistic timeline would be 18 months for substances and three years for mixtures, with this applying only to original chemical producers; those further down the supply chain, such as chemical distributors, should be given another year to comply. This would mirror an enforcement discretion issued by OSHA in the wake of the 2012 revision to HCS, which saw distributors left with very little time to produce their own SDSs and labels. “A similar situation will certainly occur with the current revision unless OSHA adopts a staggered approach based on position in the supply chain,” NACD says.

NACD was not the only entity to comment on the NPRM; indeed, such was the extent of the proposals that OSHA extended the period for submitting public comments by 30 days to 19 May; that was followed by a public hearing. OSHA will now take those comments into account in the formulation of a final rule.