Proposed Revisions to the OSHA Hazard Communication Standard Go Far Beyond Alignment with the GHS

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The proposed revisions to the OSHA Hazard Communication Standard (HCS) that are designed to achieve alignment with the 7th Revision to the Globally Harmonized System¹ will trigger extensive compliance obligations for employers subject to the HCS. Those GHS-related changes will require updating the label and safety data sheet (SDS) for every chemical manufactured or imported into the US, updating every written program; updating every training program, providing training updates to all employees, and reclassifying many chemicals. As extensive as those new obligations may be, they pale in comparison to the proposed new HCS requirements that have nothing to do with recent revisions to the GHS. As this article explains, OSHA has a much larger objective in mind.

Classifying a Chemical Based on Downstream Chemical Reactions with Other Chemicals, Including "Foreseeable Emergencies"

Overview

The fundamental problem with OSHA's proposal stems from the agency's unprecedented effort to expand the scope of the hazard classification required of the chemical manufacturer or importer beyond all reasonable limits to the point where the standard would be internally inconsistent and so overbroad and vague as to be both infeasible and incomprehensible. Under the proposed amendment, in addition to encompassing all hazards resulting from changes in physical form, the hazard classification  would also include: 

1. the hazards posed by every downstream reaction of that chemical in commerce in the US, and 
2. the hazards of the products (end products, intermediate products, by-products, and decomposition products) of those reactions, 

apparently including intended reactions, process upsets and reactions resulting from "foreseeable emergencies." 

Proposed Regulatory Text

OSHA would achieve this unprecedented and inappropriate expansion of the HCS by amending Section 1910.1200(d)(1) and Table D.1 as follows (new language in underline, language in bold is our clarifying language):

(d)(1) Chemical manufacturers and importers shall evaluate chemicals produced in their workplaces or imported by them to classify the chemicals in accordance with this section. For each chemical, the chemical manufacturer or importer shall determine the hazard classes, and where appropriate, the category of each class that apply to the chemical being classified under normal conditions of use and foreseeable emergencies [anywhere in the chain of manufacture, distribution, and use]. The hazard classification shall include any hazards associated with a change in the chemical's physical form or resulting from a reaction with other chemicals under normal conditions of use [anywhere in the chain of manufacture, distribution, and use]. Employers are not required to classify chemicals unless they choose not to rely on the classification performed by the chemical manufacturer or importer for the chemical to satisfy this paragraph (d)(1). 

[Table D.1]

[Section 2] … (c) Hazards identified under normal conditions of use that result from a [downstream] chemical reaction (changing the chemical structure of the original substance or mixture)….² 

[Section 10] …(c) Possibility of hazardous reactions, including those associated with foreseeable emergencies ….

OSHA would retain the existing definition of the term "foreseeable emergency," which is broadly defined to mean "any potential occurrence such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment which could result in an uncontrolled release of a hazardous chemical into the workplace."

Analysis of Proposed Change to Hazard Classification Provisions

In practical effect, the upstream chemical manufacturer-supplier or importer would be responsible for performing BOTH the front end of a process hazard analysis (PHA)³ and a hazard classification for each downstream chemical reaction and the reaction products of that downstream chemical reaction, again including both intended reactions and those resulting from "foreseeable emergencies." This sharp diversion from the GHS would impose obligations on chemical manufacturers and suppliers that go far beyond those imposed by any other country in the world. It is internally inconsistent with the existing language of Section 1910.1200(d)(1), which states:  "Chemical manufacturers and importers shall evaluate chemicals produced in their workplaces or imported by them to classify the chemicals in accordance with this section." It would extend the meaning of "hazard classification" beyond comprehension.

Given that downstream reactions typically involve at least two chemicals, and often mixtures, that would require multiple manufacturer-suppliers to provide redundant and overlapping PHAs AND hazard classifications to all of these downstream user-manufacturers.⁴ Of course, this requirement would also apply upstream to the suppliers' suppliers. 

Except for specialized chemicals with a very narrow use, the tasks of performing a PHA and hazard classification for planned downstream chemical reactions and the products of those chemical reactions would be highly burdensome if not infeasible. If the scope of the PHA and hazard classification were extended to "foreseeable emergencies" in every downstream facility, the task becomes infeasible for almost all chemicals. No manufacturer or importer could reasonably be expected to determine what processes, chemicals and conditions exist in downstream facilities. But the existence of such an unknowable obligation would create great uncertainty and significant potential tort liability. 

The established global practice for hazard classification is to assess the inherent hazards of the chemical as shipped without considering planned downstream chemical reactions, much less chemical reactions that might occur in a "foreseeable emergency." This does not mean that the potential for downstream reactions is ignored. In addition to classifying for physical and health hazards, the manufacturer of a chemical is required by the HCS to provide the following information in Sections 5, 9 and 10 of the SDS:

5. Fire-fighting measures

(b) Specific hazards arising from the chemical (e.g., nature of any hazardous combustion products)

9. Physical and chemical properties

(f) Flammability
(g) Lower and upper explosion limit/flammability limit
(h) Flash point
(i) Auto-ignition temperature
(j) Decomposition temperature

10. Stability and reactivity

(a) Reactivity
(b) Chemical stability
(c) Possibility of hazardous reactions, including those associated with foreseeable emergencies⁵ 
(d) Conditions to avoid (e.g., static discharge, shock, or vibration)
(e) Incompatible materials
(f) Hazardous decomposition products

What are the underlying policies and objectives driving this initiative? First, it seems clear that OSHA is not satisfied that the General Duty Clause, its Personal Protective Equipment Standards (including the Respiratory Protection Standard), and the current HCS provide it with the tools it would like to have to ensure that downstream manufacturers, not subject to OSHA's Process Safety Management Standard, responsibly perform their legal obligation to conduct an appropriate PHA. Second, OSHA consistently operates under a biased notion that the chemical manufacturer-supplier is generally if not always more knowledgeable about the hazards presented by the downstream reaction of its products, and the products of those reactions, than the downstream manufacturer who conducts those reactions. Finally, it appears that OSHA seeks to maintain its primary but diminished role in the area of workplace chemical safety, and implement its recent Memorandum of Understanding with EPA,⁶ by requiring chemical manufacturers to develop all information that EPA could conceivably require to identify and evaluate "conditions of use" under its Procedures for Chemical Risk Evaluation Under the Amended Toxic Substances Control Act (TSCA), 40 CFR 702⁷ and its new chemical review under Section 5 of TSCA).⁸ Rather than initiating a rulemaking to address these issues in an appropriate manner, it appears that the agency is attempting to subtly foist these new hazard classification requirements on the upstream supplier through this rulemaking. 

To rationalize this unprecedented approach, OSHA has inappropriately conflated the scope of a manufacturer's or importer's hazard classification obligation under the HCS with the scope of the HCS. Section 1910.1200 provides, in relevant part, as follows:

(b)(1) This section requires chemical manufacturers or importers to classify the hazards of chemicals which they produce or import, and all employers to provide information to their employees about the hazardous chemicals to which they are exposed….

(b)(2) This section applies to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency

(d)(1) Chemical manufacturers and importers shall evaluate chemicals produced in their workplaces or imported by them to classify the chemicals in accordance with this section

The scope of the HCS, with respect to an individual employer's workplace, extends to "any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency [emphasis added]." The scope of the hazard classification obligation of the chemical manufacturer or importer does not extend to every chemical known to be present in the workplace but is limited to "chemicals produced in their workplaces or imported by them." That means the scope of a manufacturer's hazard classification obligation under the HCS is properly limited to the hazards of the chemicals produced in its facilities, not in every downstream facility that uses its chemicals in a chemical reaction. 

To support this unprecedented departure from the globally recognized principles of hazard classification and US tort law, OSHA cited (in the Preamble to the Proposed Rule) three situations in which it has asserted that the HCS requires the chemical manufacturer to classify its product based on the hazards of a downstream chemical reaction. In the first example, OSHA stated:⁹

This issue has been raised, for instance, when multiple chemicals are sold together with the intention that they be mixed together [downstream] before use. For example, epoxy syringes contain two individual chemicals in separate sides of the syringe that are mixed under normal conditions of use. … OSHA intends for the hazards created by the mixing of these two chemicals to be considered in classification ….

In that unique situation, the supplier of the syringe has designed the entire chemical reaction (selected the two reactants and designed the syringe to store the two reactants and then deliver them in the proper ratio and flow rate). The second example cited by OSHA was the chemical reaction resulting from the mixing of ready-mix cement or concrete and water.¹⁰ This is a unique situation in that ready-mix cement or concrete cannot perform its singular function without adding water. The only other example cited by OSHA was to unspecified by-products (such as by-products of burning fuel)¹¹ and decomposition products. Again, fuel cannot perform its singular function of generating energy without combustion. 

Impact of the Proposed Change to Hazard Classification Provisions

This initiative provides an excellent example of an agency inappropriately using the presence of the camel's nose in the tent to justify bringing the camel into the tent. These three unique examples simply do not justify a proposed rule in which the manufacturer or importer¹² of a chemical would be responsible for identifying:¹³ (1) every downstream chemical reaction of its chemical (with any substance or mixture) that is conducted in commerce in the US, or naturally occurs (by decomposition) or could occur in a "foreseeable emergency" in the US; and (2) every hazard posed by any of those reactions and the products (including by-products and decomposition products) of those reactions. Such an analysis would be hopelessly complex¹⁴ and would be constrained by the legitimate interest and right of downstream manufacturers to protect their confidential business information from disclosure. 

For many chemicals, the eventual product of such an analysis is likely to be that the chemical (after considering every reaction involving that chemical in commerce in the US) presents almost every classified hazard identified in the HCS. Because of the incredible uncertainties, and potential consequences in the toxic torts arena, no manufacturer is likely to be willing take on the risks associated with linking specific hazards to specific uses or reactions. As a result, the system would become so complex and dysfunctional as to not only be useless but to undermine the credibility of the system and OSHA, and force a gross misallocation of resources. But not to be frustrated, once the revised rule was adopted, OSHA would come to the rescue by issuing guidance requiring manufacturers to prepare their SDSs in sufficient detail to link specific hazards and classifications to specific uses or reactions.

In short, the proposal would not simply clarify the existing requirements of the HCS (with a couple hairs on the camel's nose presently projecting into the tent) — but would require the upstream chemical supplier to perform (at least the front end of) a PHA for each downstream chemical reaction using its product and a hazard classification for each product of that reaction (akin to bringing a caravan of camels into the tent). 

While OSHA's current enforcement of the HCS may seem bearable to some, it would be highly imprudent to allow the agency to formally adopt the proposed rule and think (hope) that OSHA and the 20 plus states operating state plans would maintain the status quo in light of the likely policies and objectives discussed above. If OSHA adopts this proposed revision, how might it affect what EPA requires in connection with a new chemical submission? Finally, imagine how plaintiffs' attorneys might use this proposed hazard classification language in the toxic tort arena to immediately shift liability to the upstream chemical manufacturer or importer from the appropriately responsible downstream employer, which is generally operating under the protection of the workers compensation shield. 

With respect to the issue of classifying chemicals for the downstream hazards of chemical reactions — assuming they are listed as a separate category on the SDS and not placed on the labels, as OSHA has proposed — there appear to be three viable options:

1. Abandon the idea completely (consistent with practice in the rest of the world)
2. Limit this obligation to specifically identified chemicals and specifically identified reaction(s)
3. Retain a reworded, generic provision that clearly limits its scope to the chemical reactions explicitly recognized by the manufacturer, supported with examples

Classifying a Chemical Based on Downstream Changes in Physical Form

The proposed revision also states that the hazard classification "shall include any hazards associated with a change in the chemical's physical form." If this phrase is given a reasonable interpretation, it is less objectionable than the requirement to include hazards resulting from a chemical reaction in that, while the material may change its physical form,¹⁵ it presents the same chemical composition as the shipped chemical and often involves the same hazards as those to which the manufacturer's employees are exposed.¹⁶

It would be clearly inappropriate, however, if this "change in physical form" clause was triggered by the [downstream] mixing of the chemical with another chemical, which did not result in a chemical reaction. What is even more inappropriate is that the proposed "resulting from a reaction with other chemicals" clause apparently would be triggered if the chemical was first mixed with another chemical downstream and then reacted with another chemical downstream. Another concern is that there is some OSHA guidance indicating that destruction or demolition might be viewed as a "normal condition of use":

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.¹⁷

That issue needs to be addressed and resolved before the "change in physical form" clause or any form of the "chemical reaction" clause is adopted. Consider the use of ready-mix cement or concrete. Would OSHA have the manufacturer address the hazards of the product as shipped, the hazards of the reaction created by mixing the cement or concrete with water, the hazards of concrete maintenance and repair, and the hazards of concrete demolition?  

Classification of Constituents in Substances

OSHA also proposed adding the following provision to the classification scheme:

A.0.1.3 Where impurities, additives or individual constituents of a substance or mixture have been identified and are themselves classified, they should be taken into account during classification if they exceed the cut-off value/concentration limit for a given hazard class [emphasis added].

OSHA is apparently revisiting a provision that was in the original GHS and not included in HCS 2012. Obviously, it is highly unusual to place a non-mandatory recommendation in regulatory text and it seems unlikely to remain in that form. If a constituent of a substance (which may be in a mixture) is known to present an actual hazard, there is no justification for ignoring it. If constituent of a substance is known to be present but it is unclear whether it presents a health hazard, how should it be treated if its concentration exceeds the cut-off value/concentration limit for a given hazard class? Industry needs to provide an answer to that question with a well-supported rationale. 

Proposed Labeling Changes (Non-GHS)

On the positive side, the proposed non-GHS-related changes include several important changes to existing labeling requirements that will provide greater certainty as to what is required and will formally eliminate or modify existing requirements that have been widely recognized as infeasible and/or posing a greater hazard to employees since their adoption in 2012. The proposed small container labeling provisions would create two exemptions from the requirement to place the full label on the immediate container where it is infeasible or interferes with the intended use of the chemical. 

The proposed released-for-shipment provision would eliminate the requirement to re-label containers within six months of becoming aware of new hazard information if the containers were filled and labeled, released for shipment, and were awaiting future distribution before the six months expired.¹⁸ As written, product on a QA hold might not be considered released for shipment. That issue should be addressed. Also, the proposal would require that the manufacturer print the released-for-shipment date on the container. We anticipate that many manufacturers are not set up to do that and would find that challenging, especially if the deadline for compliance with this requirement is 60 days after the final revised rule is published in the Federal Register. OSHA should allow for the use of other mechanisms that would reliably identify the released for shipment date (e.g., lot codes). The released for shipment date obviously would not appear on product released for shipment before this change goes into effect.

A third proposal would permit the label for a bulk shipment to be placed on the immediate container, transmitted with shipping papers, or transmitted electronically as long as it is immediately available in printed form at the destination point. As proposed, it would not be a one-time label requirement as is permitted for solid metal, wood, and plastic items in Section 1910.1200(f)(4).

Compliance Deadlines

The proposal states that the final rule will go into effect 60 days after publication. It also ambiguously states:

(2) Chemical manufacturers, importers, and distributors evaluating substances shall be in compliance with all modified provisions of this section no later than [ONE YEAR AFTER EFFECTIVE DATE OF FINAL RULE]

(3)Chemical manufacturers, importers, and distributors evaluating mixtures shall be in compliance with all modified provisions of this section no later than 24 months after [… EFFECTIVE DATE OF FINAL RULE] [emphasis added]

The delayed compliance deadlines appear to be conditioned on the existence of an actual evaluation requirement. Is the term "evaluating" limited to "hazard classification"¹⁹ or does it include other tasks such as substantively revising labels or SDS to reflect revised precautionary statements? If limited to reclassification, and the manufacturer is evaluating some but not all chemicals for reclassification because of the revisions in the final rule, is the deadline extended only for the chemicals under evaluation or for all chemicals produced by the manufacturer? If a chemical manufacturer is evaluating both substances and mixtures, is the chemical manufacturer subject to the substance deadline for its substances and the mixture deadline for its mixtures? 

Depending on how the compliance deadline provisions are interpreted (particularly whether the scope of the word "evaluating" is limited to hazard classification), the proposed requirement to print the released-for-shipment date on each container, and numerous other provisions (e.g., information and training, disclosure of prescribed concentration ranges for confidential concentrations and concentration ranges) could go into effect after 60 days, which would be infeasible. After the challenging HCS 2012 experience, it is incumbent on manufacturers to comment on how long it takes to implement proposed requirements.  

On the other extreme, for many manufactures and importers, the tasks of performing a chemical process hazard analysis and hazard classification for downstream chemical reactions and the products of those chemical reactions would be highly burdensome if not infeasible. A manufacturer of a substance would have 14 months to complete this task. If its substance is produced in a chemical reaction by combining  mixtures from two suppliers, the suppliers would apparently be responsible for performing the hazard classification — including a PHA — for the hazards of the downstream chemical reactions, but would have 26 months to complete those tasks. It is unclear how that delay would affect the last sentence in 1910.1200(d)(1), which states that the downstream "employers are not required to classify chemicals unless they choose not to rely on the classification performed by the chemical manufacturer or importer for the chemical to satisfy this paragraph (d)(1)." After the 14-month milestone, it appears that every newly discovered hazard of the substance identified by a chemical manufacturer's ongoing investigation of downstream hazards would trigger the three- and six-month updating provisions of the HCS for SDS and labels, which could lead to a continuous series of reclassifications triggering those updating requirements. 

Under the structure established by last sentence of 1910.1200(d)(1), a major chemical manufacturer could find itself taking on the burden and potential liabilities of a central hazard classifier for a major segment of the chemical industry. It is unclear how manufacturer-suppliers and manufacturer-users would resolve a situation in which multiple suppliers of reactants used in a particular downstream chemical reaction are required to perform a hazard classifications for that reaction and reach different conclusions, which seems likely for any chemical with broad uses. 

There will be major compliance problems even if OSHA abandons the proposed requirement to address downstream chemical reactions. It is likely that chemical manufacturers of substances will take a full year to complete the required evaluation before transmitting the new SDSs and labels downstream. That means the first-tier manufacturers of mixtures will have only a year to update their hazard classifications, SDSs, and labels, and are likely to take the full year. It also means that the second-tier manufacturer of a mixture combining a mixture from a first-tier manufacturer with another mixture or substance will be out of compliance by the time it receives the required information from the first-tier manufacturer. Every newly discovered hazard of the mixture identified by an ongoing inquiry of downstream hazards would trigger the three- and six-month updating provisions of the HCS.

In short, the compliance deadlines are ambiguous and clearly inadequate even without the PHA requirement and the requirement to classify the hazards of the products of the downstream chemical reactions. With the addition of that requirement, it is impossible to determine what is required and when the requirement must be met because the requirements are infeasible. 

Conclusion

The GHS-related portions of the proposed rule would align the classification, labeling and SDS for hazardous chemicals manufactured and imported into the US, as shipped, with Rev. 7 of the GHS and, in that way, would advance global harmonization. The proposed non-GHS-related labeling provisions  would eliminate regulatory requirements that are recognized as infeasible and generally align labeling requirements with current practice. As such, they would provide greater certainty and comfort to the regulated community but would not provide any directly measurable economic benefits, much less the $27 million per year estimated by OSHA. 
On the other hand, the proposed expansion of the hazard classification requirement to include the hazards of downstream chemical reactions and the products of those reactions is a recipe for either: 

1. chaos, a dysfunctional chemical hazard communication system, loss of credibility for OSHA and chemical hazard communication; or
2. a complete restructuring of responsibilities within the chemical distribution system (generally away from where they properly reside), creation of non-tariff trade barriers, unjustified expansion of toxic tort liability, increases in insurance premiums and/or loss of coverage for toxic torts, and potentially reduced participation and competition in the US chemicals market

The comment deadline was extended to May 19, 2021. We would be happy to assist manufacturers and other employers in making OSHA aware of the concerns raised by its proposal and how they might be resolved in a way that advances workplace safety in a responsible and cost-effective manner. If you would like to discuss how we may be of assistance, please contact a member of our Occupational Safety and Health Practice Group.

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¹ Globally Harmonized System of Classification and Labelling of Chemicals (GHS), Seventh Revised Edition (2017). The GHS is updated every two years; the Eighth Revised Edition of the GHS was adopted in 2019. 

² For those who might think (hope), despite the clear language of the revised regulatory text, that OSHA could not possibly have intended this astonishing approach, the following excerpts from the Federal Register Notice should eliminate any doubt:

Paragraph (d) Hazard Classification

OSHA is proposing two changes to paragraph (d)(1). OSHA proposes to revise the second sentence … to read that … the chemical manufacturer or importer shall determine the hazard classes, and where appropriate, the category of each class that apply to the chemical being classified under normal conditions of use and foreseeable emergencies. The language OSHA is proposing to add at the end of that sentence (''under normal conditions of use and foreseeable emergencies'') simply reiterates the scope language currently in paragraph (b)(2) and OSHA's longstanding position that hazard classification must cover the normal conditions of use and foreseeable emergencies.

OSHA also proposes to add a new sentence to paragraph (d)(1) stating that the hazard classification shall include any hazards … resulting from a [downstream] reaction with other chemicals under normal conditions of use. OSHA believes this language is necessary because there has been some confusion about whether chemical reactions that occur [downstream] during normal conditions of use must be considered during classification. The agency's intent has always been to require information on SDSs that would identify all chemical hazards that workers could be exposed to under normal conditions of use and in foreseeable emergencies (see paragraph (b)(2)). 

OSHA notes that if it adopts the proposed revisions to [1910.1200(d)(1) and] section 2 [of the SDS template in Appendix D], hazards associated with chemicals as shipped, as well as hazards associated with a [downstream] change in the chemical's physical form under normal conditions of use, would be presented in paragraph (a), and new hazards created by a [downstream] chemical reaction under normal conditions of use would be presented in paragraph (c)...

³ The PHA would be the type required by the OSHA Process Safety Management (PSM) Standard. Although the application of OSHA's PSM Standard (29 CFR 1910.119) is limited to a threshold quantity of a limited set of highly hazardous chemicals and flammable liquids and gases, the following provisions from that standard clearly shed a light on the ultimate objective of the OSHA HCS proposal:

• 1910.119(d)(1) Information pertaining to the hazards of the highly hazardous chemicals in the process. This information shall consist of at least the following:
  • 1910.119(d)(1)(i) Toxicity information
  • 1910.119(d)(1)(ii) Permissible exposure limits
  • 1910.119(d)(1)(iii) Physical data
  • 1910.119(d)(1)(iv) Reactivity data
  • 1910.119(d)(1)(v) Corrosivity data
  • 1910.119(d)(1)(vi) Thermal and chemical stability data
  • 1910.119(d)(1)(vii) Hazardous effects of inadvertent mixing of different materials that could foreseeably occur
  • Note: Safety data sheets meeting the requirements of 29 CFR 1910.1200(g) may be used to comply with this requirement to the extent they contain the information required by this subparagraph.
• 1910.119(d)(2)(i) Information concerning the technology of the process shall include at least the following:
  • 1910.119(d)(2)(i)(B) Process chemistry
  • 1910.119(d)(2)(i)(E) An evaluation of the consequences of deviations, including those affecting the safety and health of employees
    [emphasis added]

⁴ The following very simple scenario just scratches the surface on the potential impact of this proposed revision to 1910.1200(d)(1). Assume: 

• Manufacturer A produces and sells Chemical 1 
• Manufacturer B produces and sells Chemical 2 
• Manufacturer C purchases and combines Chemicals 1 and 2 in a chemical reaction producing Chemical 3  + By-product 1  + heat

Under the proposed revision, the responsibility for hazard classifications under the proposed revisions to 1910.1200(d)(1) would be as follows: 

Responsibility for Classification under Proposed Revisions to 1910.1200(d)(1)
Chemical 1	Chemical 2	Chemical 3	By-product 1	Reaction Hazards in Producing Chemical 3 and By-product 1
Manufacturer A*	Manufacturer B*	Manufacturer A	Manufacturer A	Manufacturer A
		Manufacturer B	Manufacturer B	Manufacturer B
		Manufacturer C**	Manufacturer C**

*This analysis assumes that Manufacturer 1 manufactured Chemical 1 (possibly by extraction) without reacting any chemicals obtained from suppliers. Otherwise, those suppliers (unless under MSHA jurisdiction) would be responsible for classifying their products to include the hazards of Chemical 1, and the reaction hazards and by-products from the reaction that produced Chemical 1. 

**Section 1910.1200(d)(1) allows Manufacturer C to rely on the hazard classification performed by Manufacturer A or Manufacturer B, provided it is done in good faith, which would only seem possible if their classifications of their chemicals were linked to the reaction conducted by Manufacturer C. 

⁵ The underlined material would be added by the proposed rule.

⁶ Memorandum of Understanding Between The Office of Chemical Safety and Pollution Prevention, U.S. Environmental Protection Agency and The Occupational Safety and Health Administration, U.S. Department of Labor for Implementation of TSCA Section 5 and Sharing of Confidential Business Information (Jan. 8, 2021).

⁷ 82 Fed. Reg. 33726 (July 20, 2017). 40 CFR 702.33 defines the phrase "conditions of use" to mean "the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of."

⁸ Important Updates on EPA's TSCA New Chemicals Program (March 29, 2021).

⁹ 86 Fed. Reg. 9698, col. 1.

¹⁰ OSHA is also proposing a new [Table D.1, SDS template, Section 2] paragraph (c) covering hazards identified under normal conditions of use that result from a chemical reaction (changing the chemical structure of the original substance or mixture). One example of such a reaction under normal conditions of use is the chemical change and subsequent physical effects of adding water to ready-mix concrete or cement, which creates additional hazards besides those present before the water is added.

¹¹ The OSHA compliance directive for the HCS, which is not law but rather OSHA's enforcement position, states:

By-products are covered by the HCS. A manufacturer's or importer's hazard determination or hazard classification must anticipate the full range of downstream uses of their products and account for any hazardous by-products which may be formed. For example, a manufacturer of gasoline must inform downstream users of the hazards of carbon monoxide, since carbon monoxide is a hazardous chemical and is "known to be present" as a by-product resulting from the use of gasoline. Similarly, manufacturers of diesel fuel must inform downstream users of the potential human carcinogenicity of diesel exhaust on the SDSs for diesel fuel.

OSHA CPL 02-02-079, Inspection Procedures for the Hazard Communication Standard (HCS 2012), July 9, 2015 (pp. 8-9).

¹² In general, importers are likely to have far less capability than a manufacturer to perform this task.

¹³ Would OSHA expect a manufacturer to perform extensive internet searches to identify every publicized use of its chemical or a comparable chemical manufactured by a competitor? Would OSHA expect a manufacturer to send a written request to every customers or ultimate user of a chemical asking them whether their chemical is used in a chemical reaction and, if so, to explain how in sufficient detail (all reactants; all catalysts; all process conditions such as temperature, pressure, rate of reaction) so the manufacturer can identify the hazards of the reaction and the reaction products? 

¹⁴ The complexity of this task is illuminated by an article titled "Origins of complex solvent effects on chemical reactivity and computational tools to investigate them: a review," published in Reaction Chemistry & Engineering (issue 2, 2019). The following excerpt from the Abstract of that article indicates just how infeasible it would be to identify and analyze every possible downstream chemical reaction of a manufactured product (such as a widely-used solvent) occurring anywhere in the US:   

Solvents are crucial components in specialty chemical and pharmaceutical industries and in electrochemical and photoelectrochemical processes and are increasingly being used in catalytic reactions. Solvents significantly influence the kinetics and thermodynamics of reactions and can alter product selectivity markedly. …. Solvents can influence reaction rates, conversion and product selectivity by 1) directly participating in the reaction steps and opening alternate reaction pathways, 2) competing with the reactant for interaction with the catalysts, 3) changing the relative stabilization of the reactant, the transition state (TS) and/or the product, 4) altering intra-pore diffusion characteristics in porous catalysts, 5) exhibiting entropic confinement effects altering free energy barriers of reactions, 6) changing the solubility of different components in the reaction mixture, and 7) inhibiting undesired reactions. Their indirect influences may be due to 1) changes brought on to active sites on catalysts and 2) altered structure/stability of catalysts. 

¹⁵ Changes in physical form could include changes in state, particle size (e.g., non-respirable to respirable, non-combustible to combustible, non-nanoform to nanoform, powder v. tablet), homogeneity, viscosity, concentration, surface treatment or encapsulation, aggregation, moisture content, and residual solvent. Article 9(5) of the EU CLP states: "When evaluating the available information for the purposes of classification, the manufacturers, importers, and downstream users shall consider the forms and physical states in which the substance or mixture is placed on the market and in which it can be reasonably be expected to be used."

¹⁶ A piece of untreated engineered wood or lumber is not hazardous in the form in which it is shipped by the manufacturer but is classified for several health hazards and as a combustible dust hazard because of the potential for downstream uses involving activities (e.g., grinding, sanding, cutting, pulverizing) that will create hazardous wood dust. 

¹⁷ OSHA CPL 02-02-079, supra at p. 15.

¹⁸ For example, assume the manufacturer packages a hazardous chemical in 50 pound bags, palletizes 64 bags per pallet with an automatic palletizer, and shrink wraps each pallet. We believe OSHA recognizes that requiring the manufacturer to remove the shrink wrap, de-palletize the product, relabel the bags with an updated label and re-palletize the product is economically infeasible and creates a greater hazard to workers because of the significantly greater risk of exposure to the chemical and musculoskeletal hazards posed by those intensive manual tasks. For a situation with packaged and palletized kits, the challenge of opening and resealing or replacing outer containers would be prohibitive. Rather than maintaining a requirement to relabel containers in situations where it is infeasible and/or presents a greater hazard to workers (and therefore probably does not happen), OSHA is now acknowledging the need for an alternative approach.

¹⁹ As noted above,1910.1200(d)(1) uses the word "evaluate": "Chemical manufacturers and importers shall evaluate chemicals produced in their workplaces or imported by them to classify the chemicals in accordance with this section."