“I love deadlines. I love the whooshing noise they make as they go by.” —Douglas Adams
The first of June has come and gone. OSHA’s HazCom 2012 regulations for chemical labeling in the workplace are now in full effect for most companies. How’s your facility looking?
What Do I Need?
If your company has fallen behind, it's time to get caught up. That means your workers need to have their training, your SDS collection needs to be up-to-date, your labels need to be in place, and you need a system for updating and maintaining all of those elements.
The first part of a HazCom compliance plan is training workers to understand the new system. This step is critical. OSHA’s training deadline was December of 2013, and they’ve been citing employers ever since. Good thing you’re all trained up, right? If you think your team could use a refresher, request a free guide to HazCom 2012 labeling, which explains the new system.
Collecting an updated SDS for every hazardous chemical in your facility is the next big step. If your company produces its own chemicals, you’ll need to produce an up-to-date SDS for each one. If you get chemicals from a supplier, you may have received updated paperwork already, or you may need to request it directly. If you need to request a new SDS, make sure you document that request. I’ll explain why soon.
In general, every chemical container needs a label. What kind of label is required will vary. The recognizable HazCom 2012 format, with black pictograms inside red diamonds, is easy to spot and easy to work with. It even shares its basic requirements with the internationally-used GHS label format. (Distribute these GHS Quick Reference Cards to your workforce to help them understand the new labels.) If some other regulation applies, such as consumer product labeling or food ingredient labeling, those formats will be needed instead. And if a chemical won’t leave your facility, you may have more freedom to choose a different label design that works for you. Check out this simple flowchart to help you identify what kind of chemical label is best for your situation.
Once those three elements are in place, you need to have a system to maintain them. As it’s said, “If you fail to plan, you’re planning to fail.” Write down your process for handling, checking, and distributing the SDS for any new chemical that comes into your facility. Write down your plan for re-training your workers, to make sure that nobody forgets what those red diamonds mean. Write down your way of creating labels, and your way of providing personal protective equipment (PPE).
Hang On, That’s Not Possible!
The trickiest part of the change-over is that everybody had the same deadline. An updated SDS for each chemical should have been available from the supplier no later than June 1, 2015. But facilities that use those chemicals were also required to have updated all of their labeling no later than June 1, and the labels were supposed to be based on the SDSs. How was that supposed to work? OSHA could tell this was going to be a problem as the deadline got closer, so in February, they released a memo on HazCom enforcement that addressed the issue of the deadline.
The gist of the memo is that “upstream” manufacturers that create raw materials for other companies will be held to the deadline, while “downstream” manufacturers and importers that use raw materials to create mixtures may get some leeway. Employers that receive and use hazardous chemicals, but don’t manufacture them or distribute them elsewhere, will only be expected to maintain updated SDSs and labels as they are received. At any point, “good faith efforts to comply” may be considered.
Showing Good Faith
One important part of showing a “good faith effort to comply” is documenting your efforts to get the information you needed. (Remember how I said you should document your requests for updated SDSs? This is why.) If you'd like a visual map of how much you have left to do on your path to compliance, refer to this HazCom timeline infographic.
To qualify for additional time to meet the requirements, downstream manufacturers and importers must be able to show good faith on three points. They need to have proof that they tried to:
Get the classification data and SDSs from their suppliers
Find the information from other sources, like registries or alternate suppliers, and
Classify the chemical’s hazards themselves.
Additionally, when they provide chemicals without HazCom 2012-compliant labels or SDSs, manufacturers should be able to show that they have also been communicating with their distributors or customers about the issue, and that they have made plans to provide updated labels and SDSs as soon as the information is available.
If the manufacturer or importer meets those requirements, and they continue to provide chemical information and labeling that satisfied the 1994 version of OSHA’s chemical safety rules (often called “Right-to-Know”), then the inspector may not give a citation. If a downstream facility is unable to meet the deadline because an upstream facility still hasn’t provided an updated SDS, the inspector will report that issue. These kinds of reports are likely to lead to inspections at the upstream facility.
How Much Leeway is “Some Leeway”?
A follow-up OSHA memo for interim enforcement, pending a future final directive, gives a clearer idea of how much leeway OSHA will provide. Manufacturers and importers who meet those "good faith" requirements may continue to follow HazCom 1994 (RTK) rules for six months after receiving updated SDSs from their upstream suppliers. Existing stock that was packaged for shipment according to the RTK rules before June 1 may continue to be shipped downstream.
Distributors are expected to follow a later deadline of December 1, 2015, but existing stock that was packaged for shipment before that date may still follow the older RTK rules. If the distributor can show the same kind of good faith efforts to comply, they will be permitted to ship chemicals under the old rules until their suppliers provide updated SDSs. At that point, any existing packages will need to be accompanied with an updated SDS, and any new packages will need to follow the HazCom 2012 rules. Because this could become a very big loophole, OSHA has given a hard deadline of December 1, 2017 for distributors. At that point, all containers in the distributor's control must be labeled for HazCom 2012 before they may be shipped.
Businesses that repackage or mix hazardous materials, but consider themselves "distributors" in the supply chain, may be in for a shock: the HazCom rules define them as "manufacturers." That means the time frame for manufacturers and importers apply to them, not the later deadlines for distributors.
In general, workers need to be protected from chemical hazards, and employers are responsible for ensuring that protection is in place. That’s the same basic rule that we’ve had for ages now — everything else is details.