June 1, 2015 is the deadline by which OSHA requires chemical manufacturers, distributors, and importers to reclassify hazardous chemicals according to GHS-aligned requirements, and to update all safety data sheets and labels.
According to an analysis of the GHS-formatted documents in our safety data sheet library and available in the marketplace — compared to the SDSs that still need to be authored — MSDSonline believes it is very unlikely that all companies will have completed this task by the deadline.
Luckily for some of those companies, OSHA recently stated that it might not cite manufacturers and distributors who fail to meet this deadline if they’ve established “reasonable diligence” and made a “good faith” effort to comply. This special dispensation is only available to those chemical manufacturers and distributors who are compliant with HazCom 1994 and who are reliant upon information from upstream suppliers of raw materials to make the necessary changes themselves.
According to a February 9, 2015 memorandum, before citing a manufacturer or importer who is out of compliance, OSHA will take into account “its overall efforts, attention, and action(s) taken to comply with HCS 2012.” In short, OSHA will be looking to see if a reasonable attempt has been made to comply with the new standard.
If it has, a citation will not be issued.
What — specifically — comprises this reasonable attempt? OSHA says it will be looking for evidence of three things:
- Has an attempt been made to obtain required classification information and/or safety data sheet information from upstream suppliers?
- Has the manufacturer or importer made an attempt to locate the necessary hazard information from alternative sources like chemical registries?
- Has the manufacturer or distributor made an attempt to classify the chemical data themselves?
OSHA says it will want to see this evidence presented “through both oral and written communication directly with the upstream supplier.”
Furthermore, for each mixture shipped after June 1, 2015 that does not comply with HCS 2012, OSHA says it will determine whether a citation is warranted by considering whether the manufacturer or importer:
- Developed and documented the process used to gather the necessary classification information from its upstream suppliers and the status of such efforts
- Developed and documented efforts to find hazard information from alternative sources (e.g., chemical registries)
- Provided a written account of continued dialogue with its upstream suppliers, including dated copies of all relevant written communication with its 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 HCS 2012
- Developed the course of action it will follow to make the necessary changes to SDSs and labels.
OSHA says it will also factor in whether or not these efforts were made “in a timely manner.”
Finally, to avoid a citation, out-of-compliance manufacturers and distributors will need to be able to tell an OSHA inspector when they do expect to be GHS-compliant, and provide a specific timeline.
OSHA will permit distributors to continue to use pre-GHS labels until December 1, 2015. OSHA says that in a situation where a distributor cannot comply with the December 1 deadline because of upstream noncompliance from a manufacturer or importer, it will — similar to the above — look for reasonable diligence and good faith efforts, and determine citations on a case-by-case basis. (If a distributor has received a GHS-compliant SDS but failed to supply it to a downstream user when requested, that distributor would automatically be cited. Reasonable diligence and good faith would not be a factor.)
Have more questions about this process and/or the role of MSDSonline? Read our June 1 Compliance Alert in the GHS Answer Center on our website.