OSHA Revises Hazard Communication Standard

On May 20, 2024, OSHA published a final rule revising the Agency’s Hazard Communication Standard (HCS), which requires that workers be informed of chemical hazards.  The rule aligns the HCS with Revision 7 (Rev. 7) of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS), which is updated biennially by the United Nations.

The 318-page final rule includes special labelling provisions for small containers and mandates use of prescribed concentration ranges in safety data sheets (SDSs) when a chemical concentration is claimed as confidential.  The final rule also revises the definitions and classification considerations for various health hazards, adds a new hazard class (desensitized explosives) and three new hazard categories, and makes a number of modifications to the formatting and language that must be used on labels and SDSs.

Though the rule was largely finalized as proposed, OSHA amended one provision in response to industry pushback.  In the proposed rule, OSHA included language requiring that chemical manufacturers and importers evaluate chemical hazards “under normal conditions of use and foreseeable emergencies.”  Many commenters argued that the provision would be overly burdensome, requiring manufacturers to anticipate all possible downstream uses.  In response, OSHA eliminated the language, instead mandating that hazard classifications include “any hazards associated with the chemical’s intrinsic properties,” such as changes to the chemical’s physical form or chemical reaction products associated with reasonably anticipated uses.

The final rule is effective July 19, 2024, and contains staggered compliance deadlines.  Chemical manufacturers, importers, and distributors evaluating substances must update labels and SDSs within 18 months and must make any necessary updates to alternative workplace labelling, hazard communication programs, and trainings within 24 months.  The corresponding compliance dates for mixtures are 36 months and 42 months, respectively.  However, OSHA is not requiring chemicals that have been released for shipment to be relabeled.

GHS Rev. 7 was published in 2017.  Though GHS Rev. 8 was published before OSHA released the proposed rule, OSHA opted to align the HCS with Rev. 7 in large part because major trading partners (including Canada, Europe, and Australia) have adopted or are planning to adopt Rev. 7.  However, OSHA integrated some elements of Rev. 8 that the Agency believes will better protect workers, such as an updated method of classifying skin corrosion/irritation that expands use of non-animal test methods.

The final rule marks the first major update to the HCS since 2012, when the Agency adopted GHS Rev. 3.  A previous Verdant Law blog post on the proposed rule can be found here.

OSHA Proposes Revisions to Hazard Communication Standard

On February 15, 2021, OSHA posted a notice of proposed rulemaking to make changes to the Hazard Communication Standard.  The proposed changes include updates the criteria for classification on health and physical hazard, updating labels, new labeling provisions for small containers, technical amendments for the contents of safety data sheets, and revisions to definitions of certain terms.

The revised criteria for classification of certain health and physical hazards now includes any hazards associated with a change in the chemical’s physical form or from a reaction with other chemicals. The revised provisions for updating labels now includes the date the chemical is released for shipment.  Labels for bulk shipments can be on the immediate container or with the shipping papers, bills of lading or other electronic means that makes it immediately available to workers “in printed form on the receiving end of shipment”.

The proposed changes also state that chemical manufacturers or importers need to update the label for each individual container with each shipment, but do not need to relabel chemicals that have been released for shipment and are awaiting future distribution. For the new labeling provisions for small containers, additional options are available in situations where it is not feasible to use the full label information.  This includes putting the full label information on an outer package, a statement on the outer package that the smaller container needs to remain in the outer package when not in use, and at least has the product identifier on containers less than or equal to 3 ml.

OSHA is taking public comments on all of the proposed changes and the use of electronic template files to create safety data sheets and labels.  The comment period is open until May 19, 2021.

Senators introduce chemical spill and water protection bill after West Virginia leak.

On Monday, Senator Joe Manchin (D-WV) introduced a bill to prevent future chemical spills like the one that recently contaminated the Elk River and the drinking water for 300,000 West Virginians. The Chemical Safety and Drinking Water Protection Act of 2014 (S. 1961), cosponsored by Senators Barbara Boxer (D-CA) and Jay Rockefeller (D-WV), provides a framework for overseeing chemical storage facilities and equipping states and public water companies to respond to spills and other emergencies. The bill amends the Safe Drinking Water Act (SDWA) by adding a new Part G, “Protection of Surface Water from Contamination by Chemical Storage Facilities.”

According to a press release from Sen. Manchin’s office, the Act is premised on four key principles:

1. Requiring regular state inspections of above-ground chemical storage facilities,
2. Requiring industry to develop state-approved emergency response plans that meet at least minimum guidelines established in this bill, 
3. Allowing states to recoup costs incurred from responding to emergencies, and 
4. Ensuring drinking water systems have the tools and information to respond to emergencies.

The Act applies to chemical storage facilities for which the EPA or delegated state authority has determined “that a release of the chemical from the facility poses a risk of harm to a public water system.” It establishes state programs under SDWA to oversee and inspect the facilities, building on existing water protection plans. The bill sets federal minimum standards for chemical facilities regarding construction, leak detection and spill requirements, emergency response plans, and notification to EPA, state officials, and public water systems of stored chemicals. Inspections would be required on a regular basis, either every three of five years, depending on drinking water protection plans. The Act also ensures that EPA or the states can recover costs from facility owners and operators for emergency response activities.

The bill does not tackle the current framework’s deficit of health hazard information for the over 60,000 chemicals “grandfathered” in by the passage of the Toxic Substances Control Act (TSCA) – a gap which has received significant public criticism in the wake of the Elk River spill. There has been no indication whether the TSCA reform bills currently pending in the Senate Environment and Public Works (EPW) Committee might be amended in response to the West Virginia spill.

The text of the legislation [PDF] and a one-page fact sheet [PDF] are available on Sen. Manchin’s website. The bill has been referred to the Senate EPW Committee; the Subcommittee on Water and Wildlife has scheduled a hearing for February 4 entitled, “Examination of the Safety and Security of Drinking Water Supplies Following the Central West Virginia Drinking Water Crisis.”