Originally published March 2010
In September 2009, the Occupational Safety and Health Administration ("OSHA") proposed a change to its nearly three-decade-old Hazard Communication Standard (the "HCS") in an effort to align the HCS with the United Nations Globally Harmonized System of Classification and Labeling of Chemicals ("GHS"). OSHA argues that the rule change is necessary to improve the quality and consistency of information provided to workers, employers and chemical users. The proposed rule, the agency claims, will achieve this by adopting a standardized approach to hazard classification, labels and safety data.
Currently, the HCS (at 29 CFR §1910.1200) requires that chemical manufacturers and importers evaluate the chemicals they produce or import and provide hazard information to downstream employers and workers in the form of packaging labels and material safety data sheets. Under the proposed rule, which is modeled after the GHS, OSHA claims that hazard warnings will be disseminated to employees more accurately and completely. This will be the result of establishing uniform criteria for classifying chemicals and enhanced informational requirements for labeling and safety data sheets (presently referred to as MSDSs). One set of major changes under the proposed rule particularly merits immediate mention: labels will be required to use signal words, pictograms, and hazard and precautionary statements, and the new safety data sheets will be standardized, requiring that certain topics be covered on a mandatory basis. This will entail expense.
A second source of potential expense to employers in the proposed rule is the requirement that employers train employees on the new hazard classifications, labels and safety data sheets. OSHA argues that mandatory training will encourage the appropriate handling and use of chemicals, decreasing the incidence of workplace injury and death.
Coverage. The wide net already cast over employers by the current HCS is likely to be broadened further under the proposed rule. The HCS presently applies in all OSHA-governed places of employment where "hazardous chemicals" are present. The HCS defines "hazardous chemical" as any "chemical which is a physical hazard or a health hazard." Included under this expansive definition are such routinely contacted items as paints, household detergents, white-out fluid and even products used for the routine maintenance and servicing of office photocopying equipment.
Hazards. Under the proposed rule, OSHA would designate the following conditions or effects as health hazards: acute toxicity, skin corrosion/irritation, serious eye damage/ eye irritation, respiratory or skin sensitization, germ cell mutagenicity, carcinogenicity, reproductive toxicity, specific target organ toxicity single exposure, specific target organ toxicity repeated or prolonged exposure, and aspiration hazard. Its catalog of physical hazards includes the following: explosives, flammable gasses, oxidizing gasses, gases under pressure, flammable solids, self-heating chemicals, oxidizing liquids, oxidizing solids, organic peroxides, corrosive to metals, self-reactive chemicals, pyrophoric (capable of spontaneous ignition) liquids and pyrophoric solids.
Labeling. The proposed rule would mandate that the following standardized elements appear on all labels used with hazardous substances: 1. Signal Word — either DANGER or WARNING to denote the severity of the hazard, 2. Pictogram — including a symbol along with other graphical elements, such as a border or background color, 3. Hazard Statements — describing the hazards associated with the chemical, and 4. Precautionary Statements — describing recommended measures that should be taken to protect against hazardous exposures.
Safety Data Sheets. The proposed rule insists that safety data sheets contain the same categories of information now required by MSDSs. However, in line with GHS standards, OSHA has added four additional categories intended to provide the user a more comprehensive understanding of the chemical in use: ecological information (ecotoxicity, including aquatic and terrestrial where available, persistence and degradability, bioaccumulative potential, mobility in soil, and other adverse effects); disposal considerations (description of waste residues and information on their safe handling and methods of disposal, including any contaminated packaging); transport information (transport hazard class(es) and various other transport precautions); and regulatory information (safety, health and environmental regulations specified for the product). Notably, the aligning of the safety data sheets with GHS's classification system is expected ultimately to improve global transport of hazardous chemicals by unifying the international labeling and classification of such chemicals.
Costs And Benefits. OSHA predicts that the proposed changes to the HCS will benefit more than 40 million workers. The agency estimates that most of the costs regarding compliance with the proposed revisions to the HCS will be incurred as one-time transition costs over the phase-in period of three years. In addition, annualized compliance costs are predicted to be around $97 million. Of this amount, it is estimated that $11 million per year will be incurred by businesses to revise safety data sheets and labels to conform to the new GHS format. Employers will bear an additional $44 million in costs annually to train workers on the new warning symbols, language and revised safety data sheet format under the GHS. Lastly, OSHA estimates that it will cost businesses an additional $42 million each year to familiarize management with the new GHS system and to engage in related activities expected to be necessary for industry to adopt GHS. OSHA predicts that the benefits of the new standard that will offset these costs will include the prevention of 43 fatalities and 585 workplace injuries and illnesses annually, which OSHA estimates to have a value of $266 million a year. OSHA estimates additional annualized benefits of $585 million per year from cost reductions and increased productivity attributable to the proposed revisions.
Compliance. Deputy Assistant Secretary of Labor for Occupational Safety and Health Jordan Barab stated late last year that the proposed rule will have a three-year phase-in period after publication of the final rule, except for implementation of training and education programs which will be expected within two years of the final publication of the rule. Until then, employers will be expected to comply with either the earlier applicable HCS or the proposed rule.
Public Hearings. OSHA will hold three informal public hearings to accept comments and testimony on the proposed rule. The first hearing will be held on March 2, at 9:30 a.m. in the auditorium of the United States Department of Labor, 200 Constitution Ave., N.W., Washington, D.C. 20210. Additional hearings are scheduled for March 31, 2010 in Pittsburgh, Pennsylvania and April 13, 2010 in Los Angeles, California.
Impact. The implications of this proposed rule for employers are wide-ranging and potentially substantial. Initially, the prospective cost of compliance appears to be vastly understated by OSHA. Every employer will be affected at some level. Compliance will be facilitated if the manufacturers of hazardous substances make the required information available in the newly mandated formats promptly, and well in advance of the changeover of the standard.
Further, President Obama, both when he was a Senator and now as President, has stated his intention to increase OSHA's effectiveness as a watchdog. Most employers would have no quarrel with such a goal in the abstract. However, practical experience with OSHA exposes employers to the agency's meaning of "watchdog" — one that often seemingly bears little relation to protection. A broad and somewhat vague new standard could yield more citations, greater penalties and less flexibility to negotiate with an OSHA intent on flexing its muscles.
Also notably, the requirement to include pictorial warnings might have a ripple effect on product liability litigation. Many manufacturers do not provide pictorial warnings currently, and these never were the norm for older products. If pictorial warnings become an OSHA standard — albeit only with respect to chemical products — it easily could provide the plaintiffs' bar with fodder to argue more broadly that the absence of a pictorial warning is a defect. Those arguments have been made, and defeated, repeatedly in the past; but OSHA now is giving those arguments increased traction.
If you have any questions concerning the impact upon your business of the proposed changes to the HCS, please contact the Schnader attorney with whom you have a relationship.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
