This article presents a summary and explanation of an update to the Hazard Communication Standard
The U.S. Occupational Safety and Health Administration (OSHA) issued its final rule on May 20, 2024, updating the Hazard Communication Standard (HCS). OSHA requires chemical manufacturers and importers to evaluate and classify chemicals they produce or import, and provide information to employees and customers about hazardous chemicals through labels, safety data sheets (SDSs) and training to employees. The newly revised rule is intended to update the HCS to align with Revision 7 of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). GHS provides an international approach to hazard communication. The final rule became effective on July 19, 2024, with a transition period until 2026 for some obligations and 2028 for others.
Some of the modifications to the rule are helpful to employers; but, one change is particularly problematic. OSHA has always required as part of the HCS that chemical manufacturers and importers classify chemicals produced in their workplaces or imported by them. OSHA now requires that hazard classifications must include any hazards associated with the chemical’s intrinsic properties including: (1) a change in the chemical’s physical form and; (2) chemical reaction products associated with known or reasonably anticipated uses or applications. With this change, chemical manufacturers and importers are faced with choosing between: (a) investing significant resources to identify and document all potential uses or applications of their products, which could be determined to have been “reasonably anticipated” or; (b) being cited by OSHA for non-compliance. Further, as SDSs in particular, and OSHA compliance in general, frequently are used by plaintiffs’ lawyers to claim the employer has been negligent regarding hazard notification, this change may make employers even more vulnerable to such claims against them.
Summary of changes to the OSHA HCS
In the final rule, OSHA made the following notable revisions to the HCS:
- OSHA clarified that nuisance particulates are excluded from the scope of the standard when the chemical manufacturer or importer can establish that they do not pose any physical hazard, health hazard, or other hazards covered under the HCS.
- OSHA provided a new definition for “combustible dust,” which means finely divided solid particulates of a substance or mixture that pose a flash-fire hazard or explosion hazard when dispersed in air or other oxidizing media.
- OSHA added new flexibilities for bulk shipments of chemicals. For labels on bulk shipments of hazardous chemicals, they can be on the immediate container, transmitted with shipping papers or bills of lading, or (if the receiving entity agrees) transmitted by technological or electronic means so the labels are immediately available to workers in printed form on the receiving end of shipment.
- OSHA provided more flexibilities for labels that use Department of Transportation (DOT) pictograms.
- OSHA added a new provision for small container labeling to accommodate concerns with limited label space.
- OSHA enhanced trade secret protection by now permitting manufacturers and importers to withhold the concentration range of the substance, in addition to withholding the specific chemical identity and exact percentage (concentration) of the chemical. If the concentration range is being withheld as a trade secret, then the SDS must provide the chemical’s concentration as one of a list of prescribed ranges of concentrations.
- OSHA made several updates to general classification considerations and mandatory language (for example hazard and precautionary statements), added a new hazard class (desensitized explosives), added several new hazard categories, and made changes to several hazard classes.
OSHA’s expansion of scope of hazard classifications
OSHA’s proposed rule included a change to the standard’s hazard classification requirement as follows:
“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. 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….”
Had this language become final, manufacturers and importers would have been required to consider “foreseeable emergencies” when determining the hazard classes and appropriate category of each class that apply to the product being classified. OSHA’s regulations define “foreseeable emergency” 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.” Employers submitted comments in response to this proposed change expressing significant concern that this change could expand the HCS to apply in a way that eroded the HCS exemption from coverage for “articles.” The concern expressed by employers was that items with the potential to release more than very small quantities of a chemical during “foreseeable emergencies” — but not during “normal conditions of use” — could be prohibited from qualifying as an article. This would significantly expand the reach of the HCS to include an enormous number of items not previously covered, batteries in particular. Batteries have the potential to leak, spill, or break and, thus, may pose physical hazards or health risks to employees during such “foreseeable emergencies.” OSHA disputed that this was the intention, as they did not propose any changes to the definition of “article.”
In the Final Rule, OSHA did not make this change. Instead, the Final Rule provides:
“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. The hazard classification shall include any hazards associated with the chemical’s intrinsic properties including:
- a change in the chemical’s physical form and;
- chemical reaction products associated with known or reasonably anticipated uses or applications.”
Was this language better than “foreseeable emergencies”?
Notably, this new requirement does not even accomplish the international “harmonization” goal, as it diverges from other global practices such as the European Union’s Classification, Labelling, and Packaging (CLP) Regulation, which is based on the GHS. CLP Regulations tie hazard classification to the forms or physical states of the substance at the time it is placed on the market, and those in which it can reasonably be expected to be used.
Now, under HCS, the scope of manufacturers’ and importers’ hazard classification obligation is no longer limited to chemicals “produced in the manufacturers’ workplaces.” Manufacturers and importers also must contemplate any and all downstream chemical reactions.
OSHA stated in its preamble to the Proposed Rule that the additional language was “necessary” due to perceived confusion regarding “whether chemical reactions that occur during normal conditions of use must be considered during classification. … This issue has been raised, for instance, when multiple chemicals are sold together with the intention that they be mixed together before use.” One example provided by the agency was epoxy syringes, whereby the product was designed and sold by the supplier to have two individual reactants in separate sides of the syringe that, when depressed, was designed to mix the two chemicals. Thus, in the agency’s example, the two reactants were designed with the specific purpose that they should be combined with each other to form an intended reaction, in accordance with the manufacturer’s sole intended application of the two reactants.
Another example OSHA provided of a “reaction under normal conditions of use” was “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.” Like epoxy syringes, ready-mix concrete is manufactured with the specific and sole intent that it be mixed with a known substance (water) in the downstream use thereof.
These examples apply to a manufacturer’s known and intended chemical reactions. The chemical manufacturer or importer does not accomplish its intended use without these reactions. No new HCS language was necessary for this coverage. Rather, manufacturers and importers must now take into account, for hazard classification purposes, both intended and unintended chemical reactions in a downstream use of their product, so long as the use of the product could be considered “normal conditions of use.” Manufacturers often sell a particular product to customers in multiple industries for multiple uses and importers often just sell to a domestic distributor. Some manufacturers/importers may know all of the downstream purchasers, but certainly not all do. And, even if they do know the purchasers, they cannot possibly know what constitutes even normal use for all, much less “reasonably anticipated uses and applications.” One would have to spend all their time on social media to even make a dent in this knowledge gap.
In an attempt to assuage this fear, the agency’s preamble to the Final Rule states:
“OSHA does not intend that every possible downstream use be accounted for, only those that are known or can be reasonably anticipated…. A manufacturer’s or importer’s hazard classification must anticipate the full range of downstream uses of its products and account for any hazardous by-products that are known to be present and may be formed…. [M]anufacturers are not required to contact every downstream workplace to obtain this information, but a reasonable effort should be made.”
OSHA also claims that the inclusion of the term “reasonably anticipated” is not vague because OSHA and other agencies have used similar language in other regulations, standards, and guidance statements. However, the use of terms such as “reasonably foreseeable” in other a statutes and regulations has been adjudged to be vague and susceptible to multiple interpretations. In years past, that conclusion has led the presiding court, under the doctrine of Chevron deference, to defer to the administering agency’s chosen standard for evaluating whether an event or occurrence was, for example, “reasonably foreseeable.” With the Supreme Court’s recent ruling in Loper Bright Enterprises et al. v. Raimondo, potential legal challenges to the enforceability of the revised language may face a different fate than other rules and regulations employing such “reasonably anticipated” standards in years past.
However, unless and until this rule is changed by new rulemaking, manufacturers and importers should undertake reasonable diligence to determine the potential downstream uses and applications of its chemical products and, once identified, assess the hazard classes and category of each class attendant to such uses and include them on the SDS. Further, manufacturers and importers should brace themselves for the new ways in which tort plaintiffs may use this new regulatory language to claim that an incident or exposure from a chemical reaction that was not reflected on the SDS constitutes OSHA noncompliance that supports their legal claims.
Edited by Dorothy Lozowski
Authors
Susan Wiltsie is a partner with the law firm Hunton (2200 Pennsylvania Ave. NW, Washington D.C. 20037; Telephone: (202) 955-1500; Website: www.hunton.com). She focuses her practice on labor, employment, OSHA compliance, defense, and crisis response. Her practice includes comprehensive OSHA representation of employers across all industry sectors.
Javaneh Tarter is a senior attorney with the law firm Hunton (same address as above). She draws on her experience as in-house counsel and in private practice to assist clients with chemical and environmental regulatory and compliance matters. As part of the firm’s environmental practice, Tarter advises clients on compliance issues and enforcement actions arising under myriad of chemical laws.
Theanna Bezney is an associate with the law firm Hunton (1445 Ross Ave. Suite 3700, Dallas, Texas; Telephone: (214) 979-3000). She advises employers on a wide range of employment matters and aggressively represents clients in litigation surrounding federal and state employment discrimination claims and wage and hour issues.