Compliance alert: June 1, 2015 deadline for GHS compliance

June 1, 2015 is the deadline for chemical manufacturers to complete the process of reclassifying hazardous chemicals and update all safety data sheets and labels to the GHS format. Distributors have until December 1, 2015 to comply. The classification of chemical mixtures depends on SDSs and labels from raw-material providers and some manufacturers or importers may not have the most up-to-date or accurate information before the deadline. Recognizing that it is unlikely that all manufacturers and distributors would complete the task, OSHA issued an internal memorandum outlining enforcement guidance.

It is important to note that OSHA did not extend the deadline nor enable companies to ignore the deadline. It states that OSHA will not issue a citation against manufacturers, importers or distributors if they have exercised "reasonable diligence" and "good faith" to classify and label their chemical mixtures in accordance with the 2012 HCS requirements, and if the mixture's material safety data sheets (MSDS) and labels comply with the 1994 HCS requirements.

In contrast, beginning June 2, 2015, upstream raw-material suppliers will be deemed non-compliant and subject to enforcement action if they do not have an HCS-compliant Safety Data Sheet (SDS) or label available for downstream manufacturers or product formulators of mixtures. These suppliers must provide compliant SDSs to downstream manufacturers or importers:

• with the first shipment,
• upon request prior to the first shipment,
• and after an SDS is updated.

Manufacturers and Distributors

Compliance officers and their supervisors will determine whether the manufacturer, importer, or distributor exercised reasonable diligence and good faith to meet the June 1, 2015 effective date. The memorandum spelled out five factors for inspectors to consider, including whether the company, in a timely manner:

• developed and documented the process for gathering the necessary information from its upstream suppliers;
• developed and documented efforts to obtain hazard information from alternative sources;
• provided a written account of continued dialogue with its upstream suppliers;
• provided a written account of continued dialogue with its distributors, including dated copies of all relevant written communication with its distributors informing them why it has been unable to comply with the standard; and
• developed the course of action it will follow to make the necessary changes to SDSs and labels.

Bottom line: Companies must be able to prove that they are actively working towards compliance, that they are doing everything possible to secure the information they need. A systematic process that can be documented is key. One or two attempts will not suffice.

According to the memorandum, once the information is obtained, manufacturers and importers have six months to develop SDSs and labels that comply with the HCS or face one or more citations. Once the manufacturer or importer has developed a compliant SDS, the SDS must be provided to downstream users with the first shipment after the SDS was created, or earlier upon request.The guidance will remain effective until February 2017.

End Users: Employers

There has been a great deal of confusion and misinformation about what end user employers need to do to comply with the new Hazcom rule. Some salespeople are quick to push the need for them to be using the most recent "GHS compliant" SDS version and to use their services to obtain them. In the memorandum, OSHA clarifies this:

"Question: I'm an employer, and have not received updated SDSs or labels for some of the hazardous chemicals I use in my business. Will OSHA issue a citation to me?

Answer: No. Once you receive HCS 2012-compliant SDSs, you must maintain them. 29 CFR 1910.1200(g)(8). Once you receive HCS 2012-compliant labels, you may either maintain them on the chemical containers or follow the workplace labeling requirements contained in 1910.1200(f)(6)-(10)."

An earlier letter of interpretation also addressed the issue. "All employers, per 1910.1200(g)(1) and 1910.1200(g)(8), must have, maintain, and make available to employees the most recent MSDS or SDS received from a chemical manufacturer, importer, or distributor for each hazardous chemical in the workplace. If the employer is not maintaining the most current MSDS or SDS received, then enforcement action may occur. However, OSHA would not issue citations for maintenance of MSDSs when SDSs have not been received. As OSHA explained in the January 31, 2013 letter to Mr. Joel Gregier employers may, but are not required to, contact manufacturers or distributers of products they have previously ordered to request new SDSs, and under 1910.1200(g)(6)(vi), the SDSs must be provided."

Bottom line: Employers must retain the newest versions of the (m)SDS as they are received from suppliers. OSHA does not require employers to proactively update the existing collection. However, employers are responsible for ensuring employees know and understand the difference between the new and old format. Suppliers are required by law to send the new revised SDSs and employers are required to replace the old one with it. (Note that the old version should not be discarded, but archived.)

This does not mean the employer is off the hook. As the end users of the hazardous chemicals, employers have several responsibilities and employers need to be prepared. OSHA will look at the whole program. Employers must provide a written Hazard Communication Standard plan, a chemical inventory list, MSDSs and SDSs, and proper labels and warnings to their exposed employees. Also, employers are required to train their employees to appropriately handle the chemicals in their facilities.

This transitional period is a good time to:

• Inventory chemicals to be sure the list is up to date
• Match with the library of MSDS and SDS forms. Identify missing information and request missing forms and archive obsolete documents. (Employers are required to keep some record of the identity of the substances or agents to which employees are exposed for 30 years. OSHA recognizes an MSDS, SDS as an acceptable record)
• Evaluate the system of chemical management. If it is not automated, explore the possibilities.

The information above applies to the federal regulations. Some state statutes are more restrictive. Be sure to know the requirements.