Communication is Key: OSHA’s Amended Hazard Communication Standard

OSHA is amending its Hazard Communication Standard (HCS) regulations which require chemical manufacturers and importers to classify the hazards of chemicals they produce or import and to provide their employees information about hazardous chemicals to which they may be exposed. OSHA has promulgated amendments to the HCS program (the HCS Amendments) in the form of a Final Rule, set to take effect July 19, 2024. This article does not address all changes to the HCS program; there are certain definitional changes and clarifications to Appendix A that may be more important to individual facilities than in this general context.

Significant changes to the HCS program include:

• Revised criteria for classification of certain health and physical hazards;
• Revised labeling requirements;
• Revisions to the contents of Safety Data Sheets (SDSs); and
• New provisions relating to concentrations or concentration ranges being claimed as trade secrets.

Hazard Classification

The hazard classification provisions, contained in paragraph (d) of the regulation, require manufacturers and importers to evaluate and classify chemicals by hazard class and, where appropriate, the category of each class that applies to the chemical. These hazard classifications largely inform Section 2 of an SDS. With the HCS Amendments, OSHA seeks to codify its “longstanding position that hazard classification must cover hazards associated with normal conditions of use and foreseeable emergencies.” In the proposed rule, OSHA proposed to add “under normal conditions of use and foreseeable emergencies” to describe the scope of hazard classification. Business and industry groups submitted comments challenging this potentially confusing language. As a result, OSHA opted for a more descriptive amendment to (d)(1), adding “The hazard classification shall include any hazards associated with the chemical’s intrinsic properties including: (i) a change in the chemical’s physical form and; (ii) chemical reaction products associated with known or reasonably anticipated uses or applications.” OSHA claims this addition does not change the substance of the hazard classification provisions. Even so, regulated entities may wish to reevaluate their hazard classifications in light of this clarification.

Based on comments submitted to OSHA, many manufacturers and importers did not believe the prior version of the rule required any hazard classification relating to downstream use (meaning use by their customers). Thankfully, OSHA used this opportunity to set forth more explicit direction:

OSHA agrees with commenters that it would not be possible for every manufacturer, importer and distributor to be aware of every single use or application of its products, and the agency is not requiring these entities to do the kind of intensive investigations that many of the commenters described as infeasible. Additionally, regulated parties will not be immediately aware of all uses when new products are developed or when there are trade secret issues with downstream users. Similarly, OSHA would not expect a manufacturer to know every use of feedstocks (raw materials used to make other chemical products), starting materials or commodity chemicals, solvents, reactants, or chemical intermediaries where there could be thousands of uses or the substances are used in downstream manufacturing to produce new chemical products. However, the agency concludes that manufacturers must make a good faith effort to provide downstream users with sufficient information about hazards associated with known or reasonably anticipated uses of the chemical in question.

Labeling

The second significant change to the HCS program relates to the labeling requirements set forth in paragraph (f) of the regulation. Paragraph (f)(1) of the amended rule specifies the information required on shipping labels and instructs that “hazards not otherwise classified” (HNOC) do not have to be addressed on containers. With the HCS Amendments, OSHA proposed a new exemption, stating that “hazards resulting from a reaction with other chemicals under normal conditions of use do not have to be addressed on shipped containers.” Consistent with the paragraph (d) changes reflecting the ambiguity of “under normal conditions of use,” the HCS Amendments ultimately opt for a direct reference to (d)(1)(ii) to instruct that hazards identified under that provision do not need to be addressed on containers.

OSHA is also amending labeling requirements during transportation under (f)(5). First, a new subparagraph will specify that labels for bulk shipments may either be on the immediate container or may be transmitted with shipping papers, bills of lading, or by other electronic means so that the information is immediately available in print to workers on the receiving end. “Bulk shipment” is a newly defined term in the HCS Amendments, described as “any hazardous chemical transported where the mode of transportation (vehicle) comprises the immediate container (i.e. contained in tanker truck, rail car, or intermodal container).” The HCS Amendments add one caveat: if the label is transmitted in a manner other than a label on the bulk shipment container or in printed form, the recipient must agree to receive the labels by an alternate method.

Second, OSHA adds another subparagraph to paragraph (f) to adjust OSHA’s pictogram requirements where a DOT pictogram already appears on a container “released for shipment.” A chemical is “released for shipment” “when the producer has packaged and labeled it in the manner in which it will be distributed or sold.” Currently, HCS regulations prohibit inclusion of an HCS pictogram for a hazard already indicated by a DOT pictogram. Due to changes in DOT regulations, OSHA no longer believes potentially-duplicative pictograms would create confusion. As a result, the HCS Amendments allow, but do not require, HCS pictograms where a DOT pictogram identifies the same hazard. This policy creates a favorable outcome for regulated entities; for example “chemical manufacturers could use the same labels for shipping containers and for containers that are solely used in the workplace.”

The HCS Amendments also clarify paragraph (f)(11)’s requirements for regulated entities thar become newly aware of any significant information regarding the hazards of a chemical. The HCS Amendments specify these entities have the option to not relabel the containers after discovering new, relevant information. But, an entity that chooses this option must produce updated labels for each container and send the labels with the shipment for downstream users.

The final change to labeling requirements is the addition of small container labeling requirements in new paragraph (f)(12). For small containers, OSHA instructs facilities to use pull-out labels or tags to fit all required information into the label. However, acknowledging many facilities struggle to include all required information on these alternate labels for small containers, OSHA revised the regulation to incorporate prior guidance instructing facilities to include label information on the outside packaging. Specifically, where the facility can demonstrate it is not feasible to use pull-out labels, fold-back labels, or tags containing the full label information, the HCS Amendments provide certain requirements for containers less than or equal to 100 ml and less than 3 ml.

A container between 100 ml and 3 ml must include a label containing the product identifier, the manufacturer’s name and phone number, and a statement that the full label information is provided on the immediate outer package. For containers less than 3 ml, no label is required if the facility can demonstrate the label would interfere with normal use of the product. However, even if no label is required, the container still must contain the product identifier; as an example, OSHA suggests etching the information on a glass vial container. When a facility avails itself of the new small container provisions, it must ensure the immediate outer package contains the full label information for each chemical contained, along with a statement that the small containers inside must be stored in the immediate outer package when not in use.

SDS Management

The HCS Amendments also contain a significant change to SDS management. Previously, the HCS rule allowed facilities to “design” SDS sheets to cover groups of chemicals in a work area where it may be more appropriate to address the hazards of a process, rather than the hazards for each individual chemical. OSHA modified its SDS requirements in 2012 to require a standardized 16-section format for individual chemicals, rather than groups of chemicals. Consistent with that change, the HCS Amendments allow SDS sheets to be stored (not designed) in a way to cover groups of chemicals in a work area.

Trade Secrets – Concentration Ranges

The HCS program will treat trade secrets on SDSs slightly differently after the HCS Amendments. First, the HCS Amendments allow facilities to withhold a chemical’s concentration range from SDS Section 3 as a trade secret. Second, OSHA is allowing the use of prescriptive concentration ranges in lieu of actual concentration or range whenever the actual concentration or range is claimed as a trade secret. New subsections (i)(v) and (i)(vi) provide specific instructions for identifying the proper prescriptive range and allow manufacturers to use narrower ranges than those provided.

Timeline for Compliance

The HCS Amendments require compliance within eighteen months of the publication date (May 20, 2024) for manufacturers, importers, and distributors evaluating substances, and thirty-six months of the publication date for those persons evaluating mixtures. The preamble specifically cites new (f)(11)’s provision not requiring new labels for containers “released for shipment” to dispel concerns the compliance dates may cause issues with re-labeling.

Conclusion

OSHA’s revisions to the Hazard Communication Standards place new burdens on manufacturers, importers, and distributors. Regulated entities should carefully review the HCS Amendments to ensure they maintain compliance as changes are implemented.