OSHA's Costly and Inappropriate Ideological Expansion of the Hazard Communication Standard
Unless vacated or moderated in response to a legal challenge, the May 20, 2024, amendment to the OSHA HCS (HCS 2024) carries the potential of turning the world of chemical hazard communication upside down. Furthermore, it poses a significant threat to global harmonization based on the GHS. It has the potential to increase compliance costs by billions of dollars for manufacturers and importers of both traditional chemicals and the huge, if not predominant, portion of finished products that will no longer qualify as exempt “articles.” It is likely to create confusion because this revised U.S. approach to hazard classification significantly deviates from the approach followed by the rest of the world, and the U.S. approach to hazard classification on SDSs differs from the U.S. approach on labels. The revised hazard classification provision will create non-tariff trade barriers, greatly expand the scope and risks of toxic tort claims in the U.S., and ensure full employment for those who author safety data sheets.
One of the fundamental principles of hazard classification, for over 40 years, has been that the manufacturer/importer must classify a chemical based on the “intrinsic” or inherent hazards of the chemical. HCS 2024 casts that principle aside as if it never existed with the insertion of the following sentence in 1910.1200(d):
The hazard classification shall INCLUDE any hazards associated with the chemical’s intrinsic properties including [but not limited to]:
(A) a change in the chemical’s physical form and;
(B) chemical reaction products associated with known or reasonably anticipated uses or applications [emphasis added].
As written, the directive of this sentence is that, before classifying a chemical, the manufacturer/importer must first diligently:
(1) investigate every known or reasonably anticipated downstream change in the supplied chemical’s physical form, identify the hazards posed by those changes and the new forms, and classify the supplied chemical for those hazards; and
(2) investigate every known or reasonably anticipated downstream chemical reaction involving the supplied chemical, identify the reaction products and the hazards presented by those chemical reactions and their products (in other words, perform a process hazard analysis (PHA) of the type required by the OSHA Process Safety Management Standard), and classify the supplied chemical for those hazards.
OSHA unpersuasively asserted this change was simply a clarification of then-existing law. That assertion “allowed” OSHA to propose it and adopt this change without any meaningful discussion of its policy or cost ramifications. Numerous industry comments strongly criticized the proposed change as a major substantive change that conflicted with the language, objectives, and enforcement history of the HCS and the GHS.
In particular, commenters pointed out that the proposed change was diametrically opposed to the first sentence of 1910.1200(d)(1), which reads:
“Chemical manufacturers and importers shall evaluate chemicals produced in their workplaces [emphasis added] or imported by them ….”
the language in the 2015 OSHA HCS compliance directive[1] that states:
“If a downstream employer meeting the definition of a manufacturer alters a product (e.g., chemically react) …, then the downstream user becomes the responsible party for the product and needs to consider all the known or intended uses of the product [emphasis added].”
and the longstanding meaning of the phrase “intrinsic hazard” in the HCS, the GHS, and every other regional and national hazard communication law and standard across the globe.
OSHA clearly recognized the strength of the “intrinsic hazard” argument and should have acknowledged its error and withdrawn the proposed change to the hazard classification provision. Instead, OSHA took the transparently disingenuous step of rewriting the English language to suit its objective.[2] More specifically, OSHA simply redefined the word “intrinsic” to give a meaning that is so overreaching and inappropriate that the regulated community should have filed petitions for review long before the 59-day deadline (arriving this coming Thursday, July 18).
As previously noted, under HCS 2024, the scope of the hazard classification will “include any hazards associated with the chemical’s intrinsic properties including [BUT NOT LIMITED TO]:
(A) a change in the chemical’s physical form and;
(B) chemical reaction products associated with known or reasonably anticipated uses or applications.”
The phrase “associated with known or reasonably anticipated uses or applications” was added to the text of the Final Rule by OSHA in response to industry objections based on technical and/or economic infeasibility. That change becomes a meaningless restatement of the law when one remembers that liability under the OSH Act is based on employer knowledge rather than strict liability. The implicit definition of “intrinsic” and the use of the word “associated” work together to make the scope of the new classification provision almost unbounded and unknowable. In the future, OSHA could interpret that provision to encompass the hazards of virtually any chemical that is in any way associated with the supplied chemical. In theory, OSHA could interpret it to require classifying the supplied chemical for the hazards presented by not only an initial chemical reaction, but also second or third tier reactions.
Some industry comments pointed out that the proposed change was technically and economically infeasible because it would be impossible to identify every downstream use of a chemical, because many downstream processors would refuse to disclose details of their proprietary processes sufficient to enable a reliable hazard classification, and because the cost of conducting a PHA for every chemical subject to the HCS would be prohibitive. In the preamble to the Final Rule, OSHA purported to reject the infeasibility argument, but only after continuing to rewrite the English language regarding the meaning of the phrase “hazards associated with the chemical’s intrinsic properties”:
“[T]he agency finds it would be unreasonable to expect manufacturers to predict and account for every possible use downstream. For example, chemicals, such as toluene, that are often used as starting materials for manufacturing other chemicals, would likely have too many possible uses for the upstream chemical manufacturer to know or reasonably anticipate the ways that it could be combined with other chemicals. OSHA would not expect manufacturers of toluene, for instance, to classify hazards of the products that use toluene as a starting material in the manufacture of a downstream user’s products.”
OSHA appears to be saying that it would be so burdensome as to be infeasible to identify and classify the primary building block chemicals for all “known or reasonably anticipated uses.” For those chemicals often used as starting materials, the phrase “hazards associated with the chemical’s intrinsic properties” would revert to the traditional meaning of “intrinsic.” The phrase “too many possible uses” is an arbitrary, capricious, and unintelligible test for use by OSHA compliance personnel and the compliance personnel of 24 state plan states in determining when the hazard classification need not include the hazards of chemical reaction products.
There are several other fundamental problems created by the revised hazard classification provision. In many situations, the new classification provision will require a manufacturer/importer to classify reactants -- which are not carcinogens, reproductive toxins, etc., but react to produce carcinogens, reproductive toxins, etc. -- as carcinogens, reproductive toxins, etc. Many chemicals that have been on the market for years without the warnings required by the revised standard would now bear those warnings. The new warnings are likely to trigger frivolous and/or inappropriate toxic tort litigation. This problem could only be partially cured by extensive qualifiers and complicated restructuring of SDS that would further reduce already low compliance rates with the most complicated standard ever adopted by OSHA.
This dramatic change in the approach to classification could, in effect, virtually eliminate the “article” exemption from the HCS. The term “article” is defined as follows:
Article means a manufactured item other than a fluid or particle:
- which is formed to a specific shape or design during manufacture;
- which has end use function(s) dependent in whole or in part upon its shape or design during end use; and
- which under normal conditions of use does not release more than very small quantities, e.g., minute or trace amounts of a hazardous chemical (as determined under paragraph (d) of this section), and does not pose a physical hazard or health risk to employees.
Based on that definition, a broad range of finished aluminum, paper, paperboard, plastic, rubber, wood, and steel products have, since the adoption of the HCS, been considered exempt from its requirements and, importantly, not labeled as hazardous chemicals. In a circular economy, reclamation and recycling are reasonably anticipated. Recycled items are often shredded or ground, producing dust that is inhalable, possibly respirable, and possibly combustible. Some recycled items will be melted down, potentially releasing vapors. Following a change in physical form, these materials are often involved in a chemical reaction that may produce a new chemical or depolymerization that breaks down the chemical structures to their original monomers.
As written, it appears that HCS 2024 would require food and beverage manufacturers to identify the filled food and beverage bottles/cans/cartons in warehouses and grocery store shelves as hazardous chemicals on safety data sheets (SDS) and bottle/can/carton labels because of how the bottles/cans/cartons are likely to be processed during recycling. That interpretation was already implied by the following discussion of “articles” on page 15 of the 2015 OSHA compliance directive for HCS 2012[3]:
Exposures that may occur during the destruction of the product do not change the classification of the product as an article, as long as only a trace amount of the hazardous chemical is released.
The implication of that sentence is that destruction of the product is a foreseeable use that would prevent classification of the product as an “article” if more than a trace amount of the hazardous chemical is released. If destruction is a foreseeable use, and destruction that results in release of more than a trace amount would disqualify a product from classification as an “article,” one would readily infer that recycling is a foreseeable use, and recycling that results in release of more than a trace amount would disqualify a product from classification as an “article.”
Anticipating this result, rulemaking comments filed by several industry groups stated that it would be inappropriate to consider changes in physical form through destruction, disposal, or recycling for purposes of classification of the supplied chemical and suggesting regulatory text that would have avoided that outcome. Those comments also pointed out that OSHA’s unprecedented approach “would disqualify almost every current article from continuing to be treated as an article.” Despite legalistic and non-responsive OSHA assertions in the preamble to the Final Rule, this problem remains unaddressed.
OSHA’s statement that it “did not and does not intend the change in paragraph (d)(1) to … change the exempt [article] status of any product” is meaningless and possibly grossly misleading in the context of this rulemaking. Premised on OSHA’s disingenuous assertion that the new language is simply a clarification, any necessary reclassification of “articles” as hazardous chemicals would be simply a correction of industry’s previous “misinterpretation” of the rule rather than a change in the exempt status of any products.
The emergence of the major questions doctrine and the recent Supreme Court decisions in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce (holding that the statutory authority of an agency is to be determined by the courts without deference to the agency’s interpretation) are relevant in assessing the validity of HCS 2024. There is a significant question as to whether the OSH Act authorizes OSHA to adopt a standard requiring the manufacturer or importer of a chemical to take responsibility for identifying the hazards that may be created by the use of a chemical it manufactures by an unknown number of downstream users with which it has no controlling relationship and quite often no relationship.
In short, OSHA adopted the HCS in the early 1980s. Prior to May 20, 2024, OSHA never adopted the basic approach of the revised hazard classification language of HCS 2024 as its official enforcement position. The language of 1910.1200(d)(1) in HCS 2024 is diametrically opposed to the previous text of the HCS and the associated compliance directive, and there is an internal conflict between the sentences of 1910.1200(d)(1) in HCS 2024. OSHA never litigated these issues and there is no case law to support its position. OSHA’s position and the hazard classification provisions of HCS 2024 conflict with the meaning of “intrinsic hazard” and the approach of the GHS and every other national and regional regulatory scheme in the world that governs chemical hazard communication. Despite OSHA’s assertion that the 2024 amendment to the hazard classification provision simply clarifies existing law, OSHA remains incapable of credibly or cogently expressing that supposedly longstanding interpretation in written form.
If any company is interested in pursuing a legal challenge to this rule by the July 18 deadline, please contact us as soon as possible (Lawrence P. Halprin, halprin@khlaw.com, 301-910-4468; Manesh K. Rath, rath@khlaw.com, 202-434-4182; Eric P. Gotting, gotting@khlaw.com, 202-434-4269).
[1] https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-02-079.pdf.
[2] OSHA recently displayed its penchant for this practice when it issued the revision to the OSHA Walkaround Rule in which the phrase “reasonably necessary to the inspection” was interpreted to mean “make any contribution to the inspection.”
[3] https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-02-079.pdf. It apparently took OSHA 3 years after HCS 2012 was adopted for OSHA to figure out what it intended when it issued HCS 2012 and apparently what it might get away with adding to the rule without rulemaking. It was hardly a contemporaneous interpretation. And a further clarification was issued on September 21, 2016. https://www.osha.gov/laws-regs/standardinterpretations/2016-09-21