In Case You Missed It: A Recap of OSHA’s HazCom Public Hearing
Posted on September 28, 2021 | in Safety
by Phil Molé
On September 21–23, OSHA held an informal public hearing on the notice of proposed rulemaking (NPRM) issued earlier this year that seeks to update OSHA’s HazCom Standard to align with Revision 7 of the UN’s Globally Harmonized System of Classification and Labelling of Chemicals (GHS).
Since February 2021 when the NPRM was initially published, OSHA has been receiving feedback from stakeholders about various proposed changes. Many of the participants in last week’s informal public hearing had submitted commentary to OSHA prior to the close of the original public comment period on May 19, 2021. Those comments (which are now part of the docket for the NPRM) provided the basis for their testimony during the hearing.
Which changes in the NPRM attracted the most commentary at the public hearing? In what follows, we’ll recap some of the major takeaways from the hearing, and offer some insights into what will likely happen next.
Hazards from Chemical Reactions Under “Normal Conditions of Use”
One of the most controversial changes contained in the NPRM are updates to paragraph (d)(1) which state that 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.
OSHA stated in an April 13, 2021 webinar presented by the Society for Chemical Hazard Communication (SCHC) that they view this addition as reinforcing OSHA’s position—given in paragraph 1910.1200 (b)(2) of the HazCom Standard and clarified in letters of interpretation dating back to 2004—that hazard classification must cover the normal conditions of use and foreseeable emergencies. Additionally, OSHA stated that these identified hazards would need to appear on the shipped container labels.
OSHA also states in the NPRM that manufacturers must also consider hazards associated with a change in physical form or resulting from reaction with other chemicals under “normal conditions of use.” According to the proposed rule, “known intermediates, by-products and decomposition products that are produced during normal conditions of use or in foreseeable emergencies must be addressed in the hazard classification.” OSHA proposes that information associated with these reactions or changes in physical form would not need to appear on the shipped container label but would need to be identified in Section 2 of the product SDS.
Commenters at the public hearing raised a number of objections to these requirements, especially the proposed obligation to consider potential downstream reactions and changes in physical state. The feedback provided by these commenters can be grouped into three primary arguments:
- Chemical manufacturers are too far “upstream” in the supply chain to know all the possible uses of their chemical products, or all the associated physical conditions and other chemicals that it may come in contact with. Trying to obtain that information across all the different users and uses of a single product would be extremely difficult, if not impossible.
- Even if manufacturers theoretically could get that information regarding all downstream uses, many of its end users may have proprietary processes that prevent or complicate the sharing of that information.
- If chemical manufacturers managed to overcome both of the above two obstacles, they’d still have the daunting task of compiling a potentially huge volume of information for inclusion in Section 2 of the product SDS. The presence of all of these details could significantly compromise the effectiveness of the SDS and defeat its intended purpose as a source of information about chemical hazards for downstream users. For one, it may confuse users by including details about theoretical reactions and form changes that don’t apply to their own uses of the chemical, and second, it may make the SDS document so long as to be virtually unusable.
It should be noted that in past explanations of its proposed changes, including a stakeholder meeting organized earlier this year by SCHC, OSHA tended to give simple examples of chemical products designed for downstream use with other products. For example, a manufacturer of a paving/construction slurry product knows exactly how much water and other components should be mixed with it, and therefore is in the position to know what chemical reactions and changes of form may occur. However, as commenters pointed out during the public hearing, some chemical products have hundreds or even thousands of potential uses across multiple markets, industries and processes so OSHA’s simplified example is not realistic for those scenarios.
“Released for Shipment” Date
OSHA is proposing to update paragraph (f )(11) of the HazCom Standard to state that chemicals which have been released for shipment and are awaiting future distribution do not need to be re-labeled to incorporate new significant information about hazards. However, the chemical manufacturer or importer would still have to provide the updated label for each individual container with each shipment. The purpose of this proposal is to account for the long distribution cycles of some products and the potential hazards workers could face in re-labeling the immediate containers of hazardous chemicals. (e.g., chemical exposures, ergonomic issues, etc.)
OSHA is simultaneously proposing a new paragraph (f )(1)(vii) which would add a requirement that the shipped container label include the date when a chemical is released for shipment. OSHA states the belief that providing the date when a chemical is released for shipment on the label would help manufacturers and distributors more easily determine their obligations when new hazard information becomes available.
Commenters generally appreciated the new allowance to not have to re-label chemicals already released for shipment and agreed it would improve safety for their workers. They were considerably less supportive of the proposed requirement to include a “released for shipment” date on the shipped label. Many commenters stated that updating their current labelling systems to include the released date would be cost-prohibitive, require huge amounts of effort and provide no perceived additional safety benefit.
A secondary consideration mentioned by some commenters was the requirement for chemical manufacturers to provide the updated shipped label with the shipment in lieu of replacing the label on the container. Commenters agreed that OSHA’s proposed changes would help avoid exposure and injury risks that may result from trying to remove labels from shipped containers already released for shipment, but pointed out that sending updated shipped labels to users may create other risks. For instance, if end users receive a stand-alone shipped label with the shipment, they may assume they need to put the label on the container but might not affix it to the correct container. Some commenters advised including the information in shipping papers or in supplemental documentation instead.
Requirements for “Very Small Containers”
OSHA proposes a new allowance for “very small containers,” defined as containers of less than 3 mL in capacity. The NPRM would allow chemical manufacturers to print only the product identifier on the container itself, as long as they can demonstrate that use of a label would interfere with the use of the container. Manufacturers who take advantage of that exemption would need to provide the full shipped container label information on the outer packaging, as well as a note instructing end users to store the small containers within the outer packaging when not in use.
During the public hearing, commenters tended to favor the proposed allowance, but argued that they shouldn’t have to repeatedly demonstrate that labels would interfere with the intended use of the product. Since all containers in that size range would have similar lack of “real estate” for including labels, commenters requested that OSHA simply provide the allowance for very small containers without requiring a demonstration that labels would interfere with their use.
Definition of “Bulk Shipment”
OSHA’s NPRM proposes a new definition of “bulk shipment” as “any hazardous chemical transported where the mode of transportation (vehicle) comprises the immediate container (e.g., contained in tanker truck, rail car, or intermodal container).”
Several commenters pointed out that this definition is at odds with the definition of a similar term, “bulk package,” defined by the US Department of Transportation (DOT) as packaging (other than a vessel or a barge) including a transport vehicle or freight container in which hazardous materials are loaded with no intermediate form of containment. That part of the definition is congruent with OSHA’s definition of “bulk shipment,” but the DOT definition also covers large packaging in which hazardous materials are loaded with an intermediate form of containment, such as one or more articles or inner packaging.
Several commenters pointed out that while OSHA has stated their intent to “better harmonize the HCS with DOT regulations,” the differences in definition have the potential to cause confusion. Several suggested that OSHA simply incorporate the DOT definition by reference, which would not only address the discrepancy but also ensure that the alignment continues whenever DOT may update its definition in the future.
In Section 1910.1200 (b)(5)(i), the HazCom Standard exempts pesticides as defined in EPA’s Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulations from HazCom labelling requirements. However, products subject to regulation by FIFRA are still required to have a HazCom compliant SDS.
During the public hearing, a representative of the American Chemistry Center on Biocides Chemistries (CBC) stated that because shipped labels for pesticides are aligned with FIFRA but SDSs are aligned with HazCom, the hazard information for users is inconsistent because FIFRA and HazCom use different hazards and hazard pictograms. This reduces end user safety and creates the need for additional training. Furthermore, this misalignment will now worsen further because of the proposed updates to the HazCom Standard.
The stakeholder stated that she believes the FIFRA framework is better for communicating hazards of pesticides because it’s specifically informed by industry knowledge of pesticides and tailored toward the most effective ways of communicating those hazards. She suggested that OSHA defer to FIFRA’s system for hazard information in SDSs to improve understanding for workers.
Proposed Schedule for Future Updates
In the Federal Register notice for the NPRM, OSHA stated that they were looking for feedback on whether they should adopt a schedule for future updates to the HazCom Standard. For example, OSHA had last published a final rule updating the Standard in 2012 when it aligned with GHS Revision 3. OSHA asked stakeholders to consider if they should adopt a consistent timetable/interval for future updates, such as every two years or every two editions of the GHS. Alternatively, they could wait until there are “significant” changes to the GHS that would prompt OSHA to make further updates.
Participants in the public hearing lined up on both sides of this issue. Some chemical industry representatives supported a specific time interval, such as two years, because it would bring more predictability to the regulatory world and avoid subjective determinations about which GHS changes are “significant” enough to prompt rulemaking. Others thought that a set interval for updates could potentially create a lot of work that may not be justifiable based on the significance of the changes.
Timeline for Changes
OSHA stated in the Federal Register notice that they intended to use a phased-in timeline for the proposed changes. Per this timeline, manufacturers of substances would need to comply with revised requirements within one year of the effective date of the final rule, while manufacturers of mixtures would have two years to comply.
Stakeholders at the meeting were in wide agreement that the proposed timeline for the changes was not long enough. One commenter suggested extending the allowed time to two years for manufacturers of substances, and three years for manufacturers of mixtures.
What Comes Next?
As we can see from this recap, many commenters offered critical feedback on specific aspects of the NPRM. At the end of the final day of the hearing on September 23, OSHA stated that participants in the hearing would have until November 22, 2021 to submit any additional responses and documentation to OSHA in support of their testimony.
This means that OSHA won’t have all the information they need to sort through feedback, assess how to address it, and start the process of developing a final rule until very late this year. Given the volume of commentary OSHA already has, the first quarter of 2022 is the earliest realistic timeframe for publication of a final rule.
The final rule would then go into effect 60 days after its date of publication. What comes after that will depend on whether OSHA changes the proposed compliance phase-in timeline based on stakeholder feedback. As it stands in the NPRM today, manufacturers of substances would have one year from the effective date to comply with revised requirements, and manufacturers of mixtures would have two years to comply. We’ll have to see if OSHA extends that timeline based on commenter feedback.
There remain uncertainties about the final form that the coming HazCom changes will take, and the timeframe in which we’ll see them. However, one thing is certain; the best strategy for preparing is to make sure you’re meeting your HazCom obligations as they exist today. Every year since 2012, HazCom has been the second most frequently cited of OSHA’s regulations, and one of the most common compliance shortcomings involves gaps in SDS libraries and barriers to SDS access.
Make sure your chemical management systems make it easy to keep your SDS library and chemical inventory current, and provide access to your documents from anywhere, anytime. Better yet, look for ways to manage SDSs along with workplace container labels, and to simplify other key safety management tasks. With the right tools in place, you’ll be better prepared for the coming HazCom changes and better equipped to keep your workers safe.
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