By Christopher Bryant of Jdsupra.com
The Occupational Safety and Health Administration (OSHA) on February 9, 2015, issued enforcement guidance on the June 1, 2015, effective date for the Hazard Communication Standard (HCS). The guidance states that OSHA will not pursue enforcement actions against chemical manufacturers or importers who were unable to update their Safety Data Sheets (SDS) and labels by June 1, 2015, because they were not able to obtain updated information from their upstream suppliers, provided the manufacturers and importers exercised due diligence and good faith efforts to obtain the information.
By June 1, 2015, chemical manufacturers, importers, distributors and employers must develop SDS and labels that are in compliance with the HCS issued by OSHA in 2012. 77 Fed. Reg. 17574; March 26, 2012. OSHA recognizes, however, that some manufacturers and importers, including product formulators, are dependent upon receiving accurate and timely data and information on chemicals from their upstream suppliers before they can develop compliant SDS and labels. The guidance thus helps clarify OSHA’s enforcement discretion policy in cases where downstream members of the chemical supply chain are unable to meet the June 1, 2015, deadline to have updated SDS and labels because they have not received information from their suppliers despite making good faith efforts to obtain the data.
The guidance states that “When necessary, OSHA will exercise its enforcement discretion to allow for a reasonable time period for manufacturers or importers to come into compliance” if a manufacturer or importer has established “reasonable diligence” and “good faith efforts” to obtain information from its upstream suppliers. The guidance states that OSHA may choose to not pursue enforcement actions if a manufacturer can document that its “substantive efforts” to obtain classification information and SDS from upstream suppliers; find hazard information from alternative sources (such as chemical registries); and classify the data themselves.
Factors cited in the guidance that OSHA will consider when determining whether to defer enforcement actions with non-HCS-compliant SDS and include a demonstration that the manufacturer or importer attempted to obtain the necessary SDS through both oral and written communication directly with the upstream supplier. If that information is not obtained by June 1, 2015, OSHA states in the guidance that it will consider several factors when deciding whether to defer enforcement for non-compliant SDS and labels. These factors are whether the manufacturer:
- Developed and documented the process used to gather the necessary classification information from its upstream suppliers and the status of these efforts;
- Developed and documented efforts to find hazard information from alternative sources;
- Can provide a written account of continued dialogue with its upstream suppliers, including dated copies of all relevant written communication with upstream suppliers;
- Provided a written account of continued dialogue with its distributors, including dated copies of all relevant written communication with its distributors informing them why it has been unable to comply with the HCS; and
- Developed the course of action it will follow to make the necessary changes to SDS and labels.
The guidance states that OSHA will consider all of these factors, but that “any combination of these efforts may, depending on the circumstance, be consistent with reasonable diligence and good faith efforts.” Moreover, the guidance states that “Reasonable diligence and good faith also requires (sic) that the manufacturer or importer provide a clear timeline for when it expects to comply” with the revised HCS requirements for SDS and labels. Emphasis in original. For manufacturers or importers that have met these factors and exercised reasonable due diligence and made a good faith effort to obtain and integrate the required information but have not received all the necessary classification and SDS information from upstream suppliers, the guidance states that “No citation will be issued where sufficient documentation is provided to address the situation.” The enforcement guidance is available online.