KH OSHA Law Update: Proposed Rule to Revise the Hazard Communication Standard

On February 16, 2021, OSHA issued a proposed rule to amend the Hazard Communication Standard (HCS). The proposed rule would make several important changes to the standard’s requirements for CBI, precautionary statements, small packaging labeling, labeling of chemicals that have been released for shipment, and hazard classifications, among others. The proposal is apparently intended to align the HCS with Revision 7 of the UN Globally Harmonized System of Classification and Labelling of Chemicals (GHS) and WHMIS. The deadline for stakeholders to comment on the proposal is April 19, 2021. OSHA proposes the following changes to the HCS: 

• Requires employers to include in their hazard classification any hazards associated with a change in the chemical’s physical form (e.g., state or size) or resulting from a reaction with (apparently any) other chemicals with which the product may be intentionally or inadvertently combined or exposed to under normal conditions of use and foreseeable emergencies. 
• Adds provision that labels for bulk shipments of hazardous chemicals may be on the immediate container or may be transmitted with the shipping papers, bills of lading, or other technological or electronic means.
• Clarifies that chemicals that have been released for shipment and are awaiting future distribution do not need to be relabeled to reflect significant changes, but the chemical manufacturer/importer must provide the updated label for each individual container with each shipment, and the original label must include the date the chemical was released for shipment.
• Reduces label requirements for small containers (where manufacturer, importer or distributor demonstrates it is not feasible to use pull out labels, fold back labels, or tags containing the full label information).
• If percent concentration of a hazardous ingredient is CBI, Section 3 of the SDS must disclose the prescribed concentration range in which it falls. 
• Requires the SDS preparer to indicate if alternative information is used and the method used to derive the information when specific chemical data or information on the specific chemical is not available. 
• Does not require OSHA pictogram on the label of a shipped container where the pictogram for the same hazard required by the Department of Transportation appears on that label.
• Adds desensitized explosive as a new physical hazard. 
• Revises precautionary statements for several hazard categories. 

OSHA claims that the proposed revisions to the HCS will result in over $27 million in cost savings and will improve the quality and consistency of information provided to employers and employees. The asserted cost savings appear to be attributed primarily to the reduced requirements for small package labeling. But manufacturers would not have been complying with those requirements in any event because they were infeasible, which is the test for avoiding them under the proposed rule. In effect, OSHA is simply proposing to insert the already-existing infeasibility defense into the HCS, which means the change and asserted cost savings are illusory. On the other hand, one must carefully consider the potential costs of: identifying every hazard that might be created by a change in physical form or chemical reaction with other chemicals under normal conditions of use or a foreseeable emergency; classifying the chemical for those additional hazards; adding the required signal word, hazard statement, pictograms and precautionary statements on the label or SDS; and then trying to develop and provide the additional explanations needed to bring some sense of practical reality to them. The potential costs and impacts on the regulated industry would be staggering, would make the chemical hazard communication system dysfunctional, and would result in an enormous misallocation of resources. For example, water would be classified as a hazardous chemical because of the chemical reactions it would cause under normal conditions of use. Consider OSHA’s example of the reaction between cement and water as the type of reaction that would have to be addressed in classifying cement. It is equally applicable to water. For more information, please contact one of the attorneys on our Keller and Heckman OSHA team.