Haz Com Standard Enforcement

Hazard Communication Standard Enforcement Underway
By Mark A. Lies II and Patrick D. Joyce

Introduction
Are you ready for the new Safety Data Sheet (SDS) requirements? Failure to properly provide or respond to new SDS information could open the door to an OSHA inspection and enforcement activities, including citations and significant penalties for violating the Hazard Communication Standard 2012 (HCS 2012) (29 CFR 1910.1200).

OSHA adopted new HCS 2012 SDS standards on December 1, 2013. The new standards were implemented to harmonize material safety information with the new Globally Harmonized System (GHS), created by the United Nations to ensure uniformity in communicating information about hazardous materials across the globe.

June 1, 2015 represented a major enforcement deadline of the new standard: manufacturers must now stop sending the old Material Safety Data Sheets (MSDS) and send the new SDS instead. Chemical end users have until June 1, 2016 to respond to new SDSs passed down from up-stream suppliers and manufacturers in the workplace. This one year period presents a very short time frame in which an employer can respond to the new and updated information contained on potentially hundreds of SDSs and be complaint by June 1, 2016.

SDS Impact on Employer Safety Program
Employers should not be too quick to simply swap in a new SDS for an old MSDS and throw away the old MSDS. Previous MSDSs should be kept on file for several reasons:

• To provide proof that an employer was compliant with the old HazCom standard.
• The prior MSDSs can be useful evidence in defending against Worker’s Compensation claims by employees for occupational diseases alleged to have arisen from exposure to hazardous materials during the course of employment.
• The prior MSDS can be useful evidence in defending third party toxic tort claims alleged to have been caused by exposure to hazardous materials that the employer may have incorporated into products manufactured and sold by the employer, or by products that are resold or distributed by the employer.

The new SDS presents an opportunity for an employer to update its training, hazard communication and safety procedures for chemicals. The new SDS includes sixteen separate sections, some of which are similar or identical to the existing MSDS sections. There are, however, a number of significant changes and compliance challenges. These sections will be discussed below with recommendations.

Now that enforcement in underway, OSHA will not only be looking to see that a manufacturer has properly prepared new SDSs, they will also be looking to make sure the manufacturer went through a process to identify new risks that may not have previously been known. When OSHA begins enforcement against employers on June 1, 2016 relating to the new SDSs, it will focus on whether the employee has reviewed the SDSs to identify any new risks as well as whether it has evaluated its existing compliance programs in light of the sixteen requirements in the new SDSs.

New SDS Sections—Questions an Employer Should Ask
Below are brief descriptions of each section of the new SDS, as well as some questions an employer should consider to ensure employees are provided a safe place to work, that it will be compliant with its HAZCOM program as well as other OSHA compliance programs that relate directly to the hazardous substances identified in the SDS.

Section 1 – Identification of a chemical. Includes product identifier; manufacturer or distributor name, address, phone number; emergency phone number; recommended use; restrictions on use.

• Is it clear what a particular chemical is, and is used for?
• Do you know how to get in touch with the manufacturer of this chemical?
• Do you know who to call in an emergency?

Section 2 – Hazard(s) identification. Includes all hazards regarding the chemical; required label elements.

• Is it clear what hazards a particular chemical poses?
• Have you properly communicated the hazards of this chemical to employees?
• Are containers holding this chemical properly identified and labeled?

Section 3 – Composition/information on ingredients.  Includes information on chemical ingredients; trade secret claims.

• Do you know what is contained in a particular chemical?
• Do you know the potential lethality of this chemical and how you can update employee training to take that lethality into account?

Section 4 – First-aid measures. Includes important symptoms/effects, acute, delayed; required treatment.

• Do employees have proper training to deal with human exposure involving a particular chemical?
• Does your PPE hazard assessment need to be updated to identify necessary PPE? (29 CFR 1910.134)
• Do you have the proper PPE necessary when responding?
• Do you have the proper first-aid supplies to assist responders? (29 CFR 1910.120, 29 CFR 1910.151)
• Do you have the proper equipment easily accessible to rinse or flush should an employee be exposed to this chemical? (29 CFR 151(c))

Section 5 – Fire-fighting measures. Lists suitable extinguishing techniques, equipment; chemical hazards from fire.

• Do you have to update your Emergency Action Plan? (29 CFR 1910.38)
• Do employees have proper training to deal with a fire involving a particular chemical? (29 CFR 1910.120, 29 CFR 1910 Subpart L)
• Do you have the proper fire extinguishers on hand? (29 CFR 1910.120, 29 CFR 1910.157)
• Do you have the proper protective clothing for fire-fighting operations? (29 CFR 1910.134, 29 CFR 1910 Subpart L)
• Do you know what effect a certain fire-fighting agent will have when used on this chemical?
• If you are subject to the Process Safety management regulation (29 CFR 1910.119), do you have to conduct a wide variety of actions, such as a PHA, to be compliant?

Section 6 – Accidental release measures. Lists emergency procedures; protective equipment; proper methods of containment and cleanup.

• Do you have the correct program and equipment to respond quickly and safely to a spill? (29 CFR 1910.120)
• Do you have the correct equipment to protect first responders or outside first responders?
• Do you have the correct equipment and materials to prevent a release from spreading?
• Do you have the correct equipment to clean up a release?

Section 7 – Handling and storage. Lists precautions for safe handling and storage, including incompatibilities.

• Do you know what containers a particular chemical should be stored in (or not stored in)? (29 CFR 1910.106)
• Do you know how to properly move this chemical around our facility? (29 CFR 1910.178)
• Do you know how to properly store this material? (29 CFR 1910.176)
• Do you know what other chemical this chemical should not come into contact with?

Section 8 – Exposure controls/personal protection. Lists OSHA’s Permissible Exposure Limits (PELs); Threshold Limit Values (TLVs); appropriate engineering controls; personal protective equipment (PPE).

• Do employees have to conduct industrial hygiene monitoring if the PELs or TLVs have changed? e.g., (29 CFR 1910.1000 Tables Z-1, Z-2, and Z-3; existing requirements for a substance; General Duty Clause, Section 5(a)(1))
• Do employees have the proper PPE to use a particular chemical?
• Can you feasibly implement the recommended engineering controls?
• Are you doing proper testing to see if PELs and TLVs are exceeded?
• If levels are exceeded, how can you bring PELs and TLVs below applicable limits? Using engineering controls?
• If engineering controls are not feasible, what administrative controls or PPE must be utilized?

Section 9 – Physical and chemical properties. Lists the chemical’s characteristics.

• Have you conducted proper training?
• Is your documentation of training adequate?

Section 10 – Stability and reactivity. Lists chemical stability and possibility of hazardous reactions.

• Do you know what other chemicals a particular chemical will react with in a negative manner?
• Do you know how reactive this chemical is on its own?
• What precautions should you take to ensure this chemical does not react?
• How should this chemical be stored to avoid reactions and maintain stability?

Section 11 – Toxicological information. Includes routes of exposure; related symptoms, acute and chronic effects; numerical measures of toxicity.

• How can employees be exposed to this chemical?
• What symptoms will an employee show if they are exposed to this chemical?
• How can you pass this information to first responders and treating physicians to ensure proper treatment?
• Does your training adequately inform employees of all potential routes of exposure and symptoms?

Section 12 – Ecological information.*
While OSHA will not be involved in enforcing this section, EPA or a local environmental agency will actively monitor companies to ensure any new or updated information on ecological impacts for a particular chemical are taken into consideration and changes are made to the way an employer handles, stores, and uses a chemical.

Section 13 – Disposal considerations.*
While OSHA will not be involved in enforcing disposal techniques, EPA or a local environmental agency will actively monitor companies to ensure any new or updated disposal requirements contained on the SDS are met.

Section 14 – Transport information.*
While OSHA will not be involved in enforcing transport requirements, other agencies will actively monitor companies to ensure any new or updated transport and labeling requirements contained on the SDS are met.

Section 15 – Regulatory information.*
This section contains valuable information regarding specific or general regulations that address a particular chemical. It is not enough that an employer simply review this section. Each company should be familiar with the specific regulatory information contained in this section to be able to identify particular hazards and areas of potential enforcement exposure.

Section 16 – Other information. Includes the date of preparation or last revision. OSHA will look to this section to ensure that all information contained on an SDS is up to date based on current understanding of a chemical’s characteristics and current regulatory standards. Each company should be sure to regularly analyze chemical characteristics or contact a chemical’s manufacturer to ensure an SDS is current.

*Sections 12 through 15 will not be enforced by OSHA because they fall under the enforcement authority of other administrative agencies.

Recommendations
The Hazard Communication Standard affects nearly every employer, from chemical manufacturers to retailers to hotels whose employees work with cleaning agents. Employers need to be aware of their obligations to communicate hazards of chemical substance and must have a process for updating existing labels, SDS, hazard assessments and training programs to comply with HCS 2012.

• Employers should review the new SDSs in a timely fashion upon receipt.
• If the employer does not receive the SDSs in a timely fashion, it should promptly communicate with the manufacturer to obtain the SDSs.
• Employers should evaluate the workplace using the SDSs to identify hazardous chemicals and how their employees may be exposed.
• Employers whose employees work with or around hazardous chemicals must ensure that they review the updated SDS and assess each of the employer’s underlying compliance programs that may be impacted by the SDSs.
• Employers should ensure that employees who work with or around hazardous chemicals are trained to recognize the pictograms and hazard warnings that will be required under the new Hazard Communication Standard. Employers should document this training and develop mechanisms to ensure that employees understand the hazards of working with or around hazardous chemicals.

Mark A. Lies II is a labor and employment law attorney and partner with Seyfarth Shaw LLP in Chicago, Illinois. He specializes in occupational safety and health law and related employment law and personal injury litigation. In addition, Seyfarth Shaw has assisted CSDA members by holding presentations and moderating roundtable discussions at annual conventions. He can be reached at 312-460-5877 or at mlies@seyfarth.com. Patrick D. Joyce is an attorney in the Environmental, Safety and Toxic Tort Group in the Chicago office of Seyfarth Shaw LLP. He is a staff attorney who focuses his practice in the areas of occupational safety and health, environmental litigation, environmental counseling and construction litigation. Joyce can be contacted at 312-460-5964 or pjoyce@seyfarth.com.