DEEP DIVE: Industry Grapples with OSHA's New HazCom Final Rule

The regulatory landscape for chemical safety continues to evolve, as the U.S. Occupational Health and Safety Administration (OSHA) has finalized its long-awaited updates to the Hazard Communication Standard (HazCom).

OSHA has made revisions that align with the United Nations (UN) Globally Harmonized System (GHS) Revision 7, introducing significant changes that have left industry stakeholders bracing to prepare to meet compliance deadlines and to clarify certain provisions that have puzzled some trade group leaders.

“We certainly support the objective of harmonization,” Jennifer Gibson, vice president of regulatory affairs for the Alliance for Chemical Distribution (ACD) told 3E. “But there's the question of whether some of the elements in the final rule do harmonize.”

The revised HazCom standard requires extensive updates to safety data sheets (SDSs) and labels, impacting companies across the chemical industry. With a myriad of products to update, industry proponents argue the logistical and financial burden is substantial.

“The changes in the hazard communication standard are significant,” wrote Terry Wells, associate director of regulatory research at 3E. “The changes in the hazard classes, categories, hazard, and precautionary text are expected to require changes for most SDS and labels.”

Harmonization with GHS

OSHA's alignment with GHS Revision 7 aims to streamline international chemical safety standards. This alignment includes additional hazard classes, such as pyrophoric gases and combustible dusts.

Maureen Ruskin, former deputy director at the Directorate of Standards and Guidance for OSHA, told 3E the inclusion of these classes is driven by OSHA's commitment to worker safety.

“When OSHA first aligned with the GHS back in 2012, they stated a guiding principle was that OSHA would maintain or enhance the overall current level of protections,” Ruskin said. “OSHA followed a similar model for this rulemaking as well.”

OSHA estimates that the revised standard will prevent 43 fatalities and 585 injuries and illnesses annually. The annualized benefits anticipated to result from these reductions in safety and health risks are a collective savings of $266 million a year. OSHA projects an additional $585 million a year in cost reductions and productivity improvements attributable to the proposed revisions.

Cost and Compliance Challenges

The financial implications of updating SDSs and labels are a major concern for some chemical manufacturers and distributors. Peter F. Downing, president of New Jersey-based EHS consulting firm Environmental & Safety Solutions and a member of ACD, told 3E that OSHA's cost estimates may be overly optimistic.

OSHA estimates that the cost of classifying chemical hazards and revising SDSs and labels to meet the new GHS format is about $11 million annually across approximately 90,000 establishments. They anticipate about 30 minutes of staff time per SDS revision.

“The majority of small to mid-sized companies do not generate their own SDS,” Downing said. “They use outside services, so that number is just completely unreasonable.”

ACD estimates the cost of updating a single SDS ranges from $400-$800.

The reliance on third-party services for SDS updates adds another layer of complexity and cost, ranging from $800-$1,500 per single SDS. Companies are on the hook for ensuring their internal reviews are accurate and must also communicate across their supply chains and manage the associated staff, time, and expertise.

“We provided all sorts of real cost information, and we're disappointed that they didn't recognize that,” Gibson said.

Labeling Requirements

In response to industry feedback, OSHA introduced some flexibility in labeling compliance. Companies can send updated labels electronically or with shipments rather than physically relabeling containers ready for shipment.

“It's not a perfect solution,” Gibson said. “How do you ensure that the correct label will go to the correct container at the customer site?”

Nonetheless, Gibson said the decision to eliminate the requirement to include the date of release for shipment on labels was a win for chemical distributors.

“Manufacturers and importers must evaluate and determine the hazard class and category applicable to chemicals and transmit that information to employers and employees in SDS, labeling, and training,” Wells wrote.

Other labeling changes could occur if a new bill in the House of Representatives is successful.

A bill introduced 13 June 2024 by U.S. Rep. Adam Schiff (D-Calif.-30), H.R.8739, would amend the OSHA Act of 1970 to ensure labels or other appropriate forms of warning are provided not only in English but also in the primary language indicated by each employee exposed to the hazard. The bill has the backing of 10 House Democrats and has been referred to the Committee on Education and the Workforce.

The HazCom Standard has some recognition of the primary language for employees, Ruskin said.

“This could have a big impact on HCS and OSHA would need to figure out how to incorporate this into the HCS. For example, who would be responsible for the translations,” Ruskin said. “However, the HCS already addresses this to some degree. In the HCS, training must be effective. OSHA has interpreted this to mean that the employee must be able to understand the training and therefore should be presented in the employee’s primary language.”

Trade Secrets and Future Revisions

The updated HazCom Standard requires more precise disclosure of concentration ranges for hazardous chemicals. Instead of submitting a broader range, for example, 20-80%, which obscures the exact proportions of hazardous components in their products, manufacturers or importers must abide by the following concentration ranges if they claim them as trade secrets:

• From 0.1% to 1%
• From 1% to 5%
• From 5% to 10%
• From 10% to 30%
• From 30% to 60%
• From 60% to 80%

“From a practical EHS perspective, the tightening of the ranges is really good,” Downing said. “From a trade secret perspective, it increases the ability to reverse engineer any product.”

This alignment will allow American and Canadian workplaces to use the same SDS.

Ruskin said OSHA will sometimes get involved if a manufacturer discloses a concentration as a trade secret with one party and neglects to with someone else, pointing to the early days of the hydraulic fracking industry boom for petroleum and natural gas extraction.

“If somebody has requested what the chemical is, and the manufacturer refuses, OSHA will come in and be the arbiter of whether it is actually a trade secret and whether or not the request has been appropriately supported,” Ruskin said.

Compliance Timelines

OSHA has set staggered compliance deadlines, with an 18-month deadline for substances and a 36-month deadline for mixtures. However, this still poses challenges for companies in different positions within the supply chain, referred to as “downstream.”

Gibson said ACD requested compliance timelines that were based on a company's position in the supply chain, noting that most of ACD's members are not classified as distributors by OSHA because some of them repackage or blend products, and instead are considered producers. The American Chemistry Council (ACC), the American Coatings Association, (ACA), American Petroleum Institute, (API), Dow Chemical, ExxonMobil, and the Retail Industry Leaders Association (RILA) also have expressed support for such flexibility, arguing that the extended deadlines are necessary to implement the changes.

ACD has successfully requested compliance enforcement discretion for specific cases like this in the past, Gibson added, and may do so again.

“An importer, such as a chemical distributor…relies on the manufacturer’s information,” Downing said. “If the manufacturer waits to the last minute to make these changes, the chemical distributor of the input is going to be caught flat-footed.”

———–

Editor's Note: 3E is expanding news coverage to provide customers with insights into topics that enable a safer, more sustainable world by protecting people, safeguarding products, and helping businesses grow. Deep Dive articles, produced by reporters, feature interviews with subject matter experts and influencers as well as exclusive analysis provided by 3E researchers and consultants.