On March 26, 2012, the US Occupational Safety & Health Administration (OSHA) issued its final rule adopting the United Nations Globally Harmonized System of Classification and Labelling of Chemicals (GHS) as OSHA’s Hazard Communication Standard (HCS). The rule, codified at 29 C.F.R. 1910.1200, requires chemical “manufacturers, importers, distributors, and employers” to comply with the new GHS HCS requirements by June 1, 2015. On August 12, 2014, several trade groups representing companies that formulate chemical substances (formulators) petitioned OSHA to extend the compliance deadline for the companies they represent. The petitioners argue that the extension is necessary because many manufacturers of individual chemical substances used as raw materials likely will not provide compliant Safety Data Sheets (SDSs) on their individual substances until shortly before the June 1 deadline, making it virtually impossible for formulators to create accurate hazard classifications and produce their own compliant labels and SDSs in time to meet the deadline.
The GHS has been in force in the European Union (EU) since 2009, and OSHA promulgated its rule to provide uniformity in hazard communication. A primary aspect of the GHS is that hazardous chemical substances or products containing hazardous chemical substances must be labelled in accordance with the rule and must be accompanied by a SDS that includes the required information. Both the labels and safety data sheets notify all people who come into contact with the substance about the substance’s hazards, proper storage and handling procedures and the measures that can be taken to minimize or prevent adverse effects from exposure. The labeling requirements update and revise existing obligations and SDSs replace the existing Material SDS requirement. The new GHS rule requires that labels and SDSs communicate more information than required previously.
Petitioners argue that when OSHA promulgated the rule, the Agency presumed that raw chemical manufacturers would finalize their updated labels and SDSs well in advance of the June 1, 2015 deadline. The petitioners claim that while manufacturers, importers and distributors of individual chemical substances will meet the deadline, they will do so with little time to spare. The petitioners point out that when the EU adopted the GHS, they avoided a similar predicament by imposing a short transition time for substances, but a longer transition period for mixtures or preparations. Consequently, the petitioners assert that the existing deadline can stay in place for manufacturers, importers and distributors of individual chemical substances, but that the deadline for manufacturers, importers and distributors of formulated products should be extended by two years to June 1, 2017.
While the petitioners strongly prefer that OSHA extend the compliance deadline for formulators, the petitioners propose alternatively that OSHA could grant formulators a temporary variance from the GHS rule, not to exceed two years, or adopt a policy that formulators’ non-compliance with the new GHS rule is merely a de minimis violation of the GHS rule until June 1, 2017, as long as the formulators comply with the existing 1994 hazard communication requirements. Petitioners stress that they are not seeking to bypass the GHS rule or otherwise avoid their compliance obligations but simply requesting an alternative, achievable, compliance timeline.
Given the immediacy of the concern, the petitioners requested that OSHA respond to the petition by September 14, 2014; however, to date there has been no response. Squire Patton Boggs will monitor and provide updates on this issue as they emerge.
